A Florida state bill targeting a supposed threat from Islamic law is being opposed by Jewish and Muslim religious groups. The Application of Foreign Law in Certain Cases bill is considered likely to pass the Florida Senate before the end of the legislative session on March 9, 2012. Observers expect Governor Rick Scott to sign the law, which has already passed the Florida House of Representatives, soon afterward.
The bill is part of a wave of legislation against Sharia, or traditional Islamic law, that has swept the U.S.A. in recent years. Florida legislators introduced a similar bill last year that failed because of concerns that it was too broad and could interfere with commercial and church affairs. The new, more targeted bill specifically applies only to divorce, child support and custody hearings in family court. It states that arbitration is unenforceable if a tribunal bases its ruling on a "foreign law, legal code or system" that does not grant people the same rights as the Florida state or U.S. Constitutions.
About 30 states have considered or are considering similar laws.
A federal court blocked a similar law in Oklahoma in January 2012 because it specifically targeted Sharia and as such was deemed unconstitutional. Mach, director of the ACLU's Program on Freedom of Religion and Belief, said that more neutral laws have passed in Louisiana, Tennessee and Arizona. South Dakota legislators passed a similar bill in February 2012 that is expected to become law in March.
The Council on American-Islamic Relations has vowed to fight the bill. So too has the strictly Orthodox umbrella organization Agudath Israel of America, whose executive vice president, Rabbi David Zwiebel, said, "The notion that secular judges are being asked to decide whether religious law does or does not conform with 'fundamental liberties' is an intrusion on religious freedom and could be a dangerous precedent for more far-ranging efforts in the future that might well impact religious communities."
Eugene Volokh, who teaches church-state relations law at the UCLA School of Law, said "It is unclear whether Jewish law or Sharia law 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." Instead, Volokh said, the bill could pose more of a threat to immigrant couples that find themselves in family court because family courts often have to examine marriages, divorces and business dealings that took place in countries with laws much different from those of America."
Another unintended consequence of the bill could be that it may strike a blow for women's rights in religious divorce. Marci Hamilton, a law professor and church-state expert at Yeshiva University's Benjamin N, Cardozo School of Law, said Jewish and Muslim divorce law is a "male-dominated universe."
"Imams or rabbis determine the result," Hamilton said. "The man has preference in this system, and the woman gets railroaded through the process. I can understand rabbis would object to a level playing field, but civil courts don't have to operate with women in a lesser position."
The Florida bill does include a clause that allows couples to obtain a waiver as long as the waiver is "consistent with constitutional principles."
Many legal experts say the law is all smoke and mirrors because it doesn't do anything to prevent the use of Sharia beyond what the U.S. Constitution already prohibits. The Constitution's Establishment Clause already forbids courts from enforcing or interpreting religious laws. It will be very simple to sidestep this law. It's a political show and nothing more. But some people will see it as a great victory in suppressing extremist Islam. It's nothing of the sort.
Florida State Representative Ari Porth, a Democrat who is himself Jewish, said he supported the bill "because it directs our courts to protect our valuable and unique individual liberties that are protected by the state constitution and U.S. Constitution."
Rep. Elaine Schwartz, also a Jewish Democrat and the only member of the House judiciary committee to oppose the bill, said she believed that the measure was "a political ploy to generate fear of Muslims."
Said Schwartz, "I think my colleagues lost their minds."
Rabbi Allen S. Maller retired after serving for 39 years as Rabbi of Temple Akiba in Culver City, Ca. His web site is rabbimaller.com.