There is a meme circulating that there is some issue in the United States about someone somewhere wanting to “impose Sharia law.” I will not comment at the moment about the political purposes such a meme serves, but only note that it does and will play a predictable role in discourses about the First Amendment, religious freedom, Islamophobia, political correctness, judicial activism, etc. etc. I am loathe to assert a negative here, having not fired up the Lexis-Nexis, but I do not believe that there is a single instance of an American court “applying Sharia law” or of a Muslim litigant requesting same. Yet in a prominently circulated video, Herman Cain (no, I’m not going to link, it only encourages this sort of thing) claimed that the attempt to impose Sharia law by “some” Muslims (he alludes to two examples, our topic today) was a basis for not appointing any Muslims to the bench. In the course of this rather disappointing (coming from an African-American) abuse of first-order predicate logic, given that “some” African-Americans are serving time in penitentiaries, and yet presumably it is not the case that we should not have any African-American politicians (there’s a word for this kind of thinking), I thought I might shed some light on what “imposing Sharia” might mean, where this meme comes from.
Religious organizations often own property, sometimes property of considerable value. They also incur debts, sometimes debts sufficient to drive them into bankruptcy. Also, individuals associated with religious organizations sometimes incur personal debts which they would like to see passed on to it. And most importantly, sometimes religious organizations, like marriages, bifurcate, leaving questions of property division behind. We have seen many cases of the last during the controversy over the Episcopal Church’s ordination of gay bishops. In protest, some congregations have separated from the church, sought alternate pastoral leadership, and announced that they, not their gay-friendly brethren, are the “real” Episcopal Church.
Suppose that something like that happens, and come Sunday, the un-gay-friendly parishioners show up to “their” church to hold services only to be greeted by locked doors. Lacking a key, they break open the doors and begin services. Gay-friendly parishioners call the police to report a criminal trespass in “their” church. The alleged trespassers are hauled into court.
Whether the now criminal defendants are trespassers or not will depend in part on whether they own the property or not. Well, can’t we just look that up at County Records? Sure. It will say “The Episcopal Church.” And the defendants will claim that an element of the crime of trespass is not met because they are the Episcopal Church.
A secular court, for obvious reasons, must adjudicate this; the First Amendment does not say “as soon as religion is espied in the distance, hide under a rock,” for the result would be anarchy. What to do? The answer is not hard to find: that hot-bed of judicial activism, the Supreme Court of the United States, in 1871, said “[T]he rule of action which should govern the civil courts . . . is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them (Watson v. Jones, 80 U.S. 13 Wall. 679 (1871)).” In short, the gay-friendly schismatics lose. For if they were to win, that would involve a searching inquiry by the court into Jesus’ views on homosexuality, and that the First Amendment would not allow.
But wait! Determining that the church property is controlled by whoever the Presiding Bishop of the Episcopal Church U.S.A. says it is is applying Episcopal law!!! And the fact that a prosecuting attorney makes this argument in the case against our imaginary trespassers means that there are people in our government who want to apply Episcopal law!!! Well, that’s good enough for me. Episcopalians should not be appointed serve in our judicial system at all.
This reasoning, since it clearly can be replicated with every denomination in America, implies that every denomination, insofar as it has legal problems ever, is or will be trying to “impose religious law.” Which means that if we are to avoid this result, we should adopt a political prejudice against all religious people, and Herman Cain ought to favor only appointing agnostics to the bench.
Now I would like to put out a general request for examples of American cases that have been characterized by commentary as “imposing Sharia law” which do not turn out to be instances of a Watson-style analysis. I’m a gambling man; I say there won’t be a single one.