That's an excellent question, but wouldn't there be a First Amendment
problem here even in the absence of the Oklahoma provision? If the court has
to decide what Islamic law really calls for, then that, I think, would involve
a secular court impermissible deciding a religious question.
On the other hand, if the court simply accepts testimony that the Texas
Islamic Court actually devalues the testimony of women witnesses (to take one
example of a possible challenge), or for that matter refuses to hear certain
kinds of testimony regardless of the witness's sex -- as I understand it, an
arbitration may sometimes be set aside on the grounds that an arbitrator simply
refused to consider certain evidence -- then I don't think that would violate
the "no religious decisions" principle. The court won't be considering what
Islamic law really means, but only what procedures this tribunal is applying.
But for the same reason that this is consistent with the First Amendment,
wouldn't it also be consistent with the Oklahoma provision (especially if
ambiguity in the provision is interpreted to avoid constitutional doubts)? At
that point, the court isn't "consider[ing] ... Sharia law," but just hearing
testimony about which particular procedures this tribunal was usin!
g.
Eugene
Eric Rassbach writes:
> Let's say that an arbitration clause says that the case "shall be decided in
> accordance with Islamic law as determined by the Texas Islamic Court." One
> party sues in Oklahoma state court. The defendant asks the court to stop the
> state court proceedings and enforce the arbitration clause. The plaintiff
> says
> the arbitration clause is unenforceable because some substantive and
> procedural aspects of Islamic law as typically determined by the Texas
> Islamic Court are unconscionable/against public policy. Would the court
> have to "consider" or "look to" Sharia to decide the enforceability question?
>
> An analogy might be an adequate alternative review on a forum non
> conveniens motion; courts have had to consider, for example, whether Saudi
> courts are adequate alternative fora given the lesser weight given to the
> testimony of women and non-Muslims.
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