Anti-Sharia’s Unintended Consequences

The recent spate of ‘anti-Sharia’ legal proposals may have unintended consequences aside from these laws’ crass targeting of Islam. The Jewish Daily Forward reports that a bill under consideration in Florida has now also alarmed some Jewish groups, who fear the proposed statue may be used to overturn Orthodox divorce law.

The bill currently wending its way through the Florida Legislature is broadly written as a ban on “foreign” sources of law, which backers hope will sidestep efforts to void the law as unconstitutional religious discrimination, as happened with Oklahoma’s first attempt at putting an ‘anti-Sharia’ law on the books. (Supporters of the Florida bill nevertheless acknowledge it was written with Muslims in mind.) The problem now, though, is that the bill is so vague as to target any system of jurisprudence which does not give individuals “the same rights” as both the U.S. and Florida constitutions. It’s easy to see a judge taking license with such an open-ended ban and invoking it for ideological purposes, invalidating “discriminatory,” “irrational,” or “archaic” religious obligations because they now must meet the demands of 21st-century secular political theory. Orthodox Jewish divorce, which reserves to men the exclusive right to initiate  get , could be at the top of the list.

And the bill’s poor play at neutrality raises further problems:

Michael Helfand [a professor at Pepperdine University School of Law] said the ADL is right to be concerned about the Florida bill. But he cautioned that the bill is so confusingly written that its impact on Orthodox couples will become clear only when courts begin to interpret the law.

Eugene Volokh, who teaches church-state relations law at the University of California, Los Angeles’s School of Law, agreed that it is unclear whether Jewish law — or even Sharia — falls under the bill’s definition of a “foreign law, legal code or system of jurisdiction outside” the U.S. Neither of those religious codes conforms to national boundaries, he observed. Instead, Volokh said, the bill could pose more of a threat to immigrant couples that find themselves in family court.

Volokh said family courts often have to examine marriages, divorces and business dealings that took place in countries with laws much different from those of America. He said that if the Florida bill is interpreted broadly, “you have huge problems, because it’s not clear how U.S. courts will be able to properly decide whether a couple was married or divorced properly overseas.”

Another unintended consequence of the bill could be that it may strike a blow for women’s rights in religious divorce.

As some of the other experts interviewed for the article point out, it is conceivable that this law would fail at its own purpose—individuals, like Muslims or Jewish couples entering into a marriage—would simply have to take the additional step of signing a civil contract “giving up” some of their rights before formally consecrating their union. But aside from the annoyance this would impose on people of faith, it represents, in the words of one rabbi, a further advance for “[t]he notion that secular judges are being asked to decide whether religious law does or does not conform with ‘fundamental liberties’ [ . . . ] [It is] an intrusion on religious freedom and could be a dangerous precedent for more far-ranging efforts in the future that might well impact our community.”