> I think it important to publicly identify criminal and tortious behavior > with the religious tradition on which it rests. Otherwise, we are > catering to the American societal instinct to whitewash religion to protect > it from its darker corners. >
I agree with you in the abstract. You will notice that I did not deny the FMG is in some sense Islamic, only that it is compelled by Islamic law as that term is generally understood. I have no doubt that Muslim East Africans who practice FMG see it as a way of avoiding zina (sexual immorality) even if classical Muslim ulamas have never made this argument and the claim is denied by many modern Islamic jurists. It seems to me that there are two dangers with your preferred strategy. First, doing it well requires a fairly nuanced understanding of a religious tradition and this is not something that one often sees in public discussions of religion. The widespread belief -- which I take it that you shared -- that FMG is part of Islamic law and is a widespread Muslim practice is a case in point. I agree with you that there is a dangerous intellectual poverty in a discussion of religion that insists that it can never have any darker manifestations. On the other hand, there is a real risk of perpetuating ignorant stereotypes and this risk rises the more "foreign" the religion seems, where in functional terms in American society "foreigness" is defined in terms of one's distance from mainstream Protestantism. The second danger is the ease of assuming religious causation. For example, one might argue that Islam causes FMG. Here the issues get even more complicated. Clearly Islam does not cause FMG in any absolute sense. FMG is practiced by only a tiny minority of the world's billion or so Muslims. Also, my understanding is that FMG cuts across religious lines in East Africa, and is practiced by Muslims, Christians, and animists. At the same time, you are likely to see uniquely Islamic manifestations of the practice, manifestations that are going to be embedded in Islamic narratives about zina, etc. etc. A public pose of honestly calling a spade a spade etc. etc., especially when it is based on only a cursory understanding of the religious dynamics is likely to simply wash away such nuances and replace it with a linear story of religion X causes evil Y. This is especially true where religion X seems "exotic" and where there are groups such as the media and the plaintiffs bar that have powerful financial incentives to propagate simplistic stories. > At least under existing Establishment Clause doctrine, contracts that > require religious interpretation (all contracts require interpretation) > present special problems not present in any other contract. I think Jones > v. Wolf is very helpful on these points. In that case, the Court says that > neutral principles of law can apply in disputes between believers over > property, but the Court warns religious organizations to enter into > contracts that reflect their intent using those neutral principles. If the > courts must be arbiters of belief, they may not resolve the property > dispute. Same principles apply here. By keeping courts out of the > business of interpreting (i.e., determining) religious doctrine, the ends > you mention are not necessarily disserved. Rather, commercial contractors > are required to translate their religious beliefs into neutral rules that > are then incorporated into the contract. The interpretation of doctrine is > therefore done by the individuals, not the courts, and the courts are > enforcing neutral principles. The use of "Sharia law" is a shorthand, not a > necessity. The defense that having to spell out the principles of Sharia > law that the parties intend to incorporate requires more words or paper is > hardly persuasive. > I don't have a quarrel with the basic approach in Jones v. Wolf, but I do think that your approach to contract drafting and interpretation runs counter to more than a century of development in contract theory and contract doctrine. I think that it is fairly widely accepted that in contract interpretation one of the chief functions of the courts is to assist the parties in resolving their dispute by seeking to give effect to their agreed upon terms. We do this all the time in other contexts, even when doing so requires that we make inquiries into the the shared meaning of apparently vague or ambiguous terms. This is the whole point behind the modern relaxation of the parole evidence rule or the mirror image rule under UCC 2-207. This approach in effect amounts to an ex post subsidy of contract drafting via the courts. The alternative is to simply refuse to interpret terms that aren't crystal clear on their face and require the parties to bear the costs of increased contract drafting ex ante. My point is simply that there is no reason to impose on religious contractors a greater burden in ex ante drafting than we impose on any other contracting party. This means that in many cases Jones v. Wolf and related doctrines should cut off contract enforcement, but we'll have to look at the specifics first. We can't simply freeze in the face of any religious looking term and start telling stories about the threat of religion to the liberal order without first trying to understand how the religious looking terms function and determining whether they can be interpreted without the court engaging in theologizing. (Incidentally, if anyone is actually interested in any of this stuff, I have a piece forthcoming in the Utah Law Review that looks at the interpretation of Islamic marriage contracts by American courts and discusses how I think contract and constitutional law ought to be applied to these agreements.) Best, NBO
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