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Witte Urges Muslims to Follow Catholic, Jewish Examples of Adapting to Western Law
By Mary Loftus | Emory Law | Jan 27, 2012 12:01:00 AM

On November 2, 2010, Oklahoma voters approved a proposed constitutional amendment that would prevent state courts from considering or using Muslim Shari`a law.

The vote was blocked by an injunction, which the U.S. Court of Appeals 10th Circuit upheld earlier this month, but cases like this are just the beginning as Muslim law’s integration and adaptation to Western secular societies is navigated, says John Witte, director of Emory's Center for the Study of Law and Religion.

This promises to be a long, contentious journey.

“The current accommodations made to the religious legal systems of Christians, Jews, First Peoples, and others in the West were not born overnight,” says Witte. “They came only after centuries of sometimes hard and cruel experience, with gradual adjustments and accommodations on both sides.”

Witte gave the inaugural Don S. Browning Lecture on January 25 at Emory Law on the topic “Shari’a in the West? What Place for Religious Family Laws in America and Other Western Democracies?” A world-renowned scholar of legal history, marriage law, human rights, and religious liberty, Witte is Jonas Robitscher Professor of Law and Alonzo L. McDonald Family Foundation Distinguished Professor.

Prickly questions abound when determining how religious minorities such as Muslims, with distinctive family norms, cultural practices, and their own religious law, courts, and schools, can be accommodated in democratic societies.

Take the institution of marriage, for example, which has both legal and religious components.

“What forms of marriage should citizens be able to choose, and what forums of religious marriage law should states be required to respect?” Witte asks. Arranged marriages? Polygamy? Child brides? 

While informal methods of cultural and legal coexistence are currently in place, he says, these are only temporary solutions—“creaky accommodations and concessions that can easily fall apart.”

What happens when a Muslim citizen appeals to the state for relief from a religious marriage contract or family practice she cannot abide but also cannot escape? When an imam or Shari’a court oversteps its authority? When a single-sex Muslim school that does not “spare the rod” is sued for gender discrimination or child abuse?

It’s not the first time societies, or religious communities, have faced these challenges, says Witte.

Catholics, he said, went from the “pilloried pariahs” of mid-19th century America to leaders of the nation -- and its Supreme Court -- 150 years later.  “Catholics learned to embrace on their own distinct terms the nation’s commitment to democracy, human rights, religious freedom, and rule of law.”  They learned to adjust their religious canon laws of marriage and family to the demands of a neutral state, without giving up their core religious teachings. 

Diaspora Muslims in the America and elsewhere in the West can do the same, Witte argued, especially given the enormous “cultural sophistication and diversity” of Islamic beliefs and practices around the world, some of which are deeply congenial to Western values.

The Jewish experience may be especially instructive, in that Jews have endured nearly two millennia of compromise as they adapted to the laws of the lands in which they settled. This made them sort out “which of their own religious laws were indispensable, which more discretionary . . . which had to be resisted even at the cost of life and limb.”

Only recently, after “endless litigation and lobbying,” have Jews gained legal ground for rights such as Sabbath accommodations and access to Kosher food, says Witte, as well as the option to have Jewish courts decide certain domestic and financial affairs.

Modern lessons can be drawn from the experience of the Jews for Shari’a advocates, says Witte: first, that time, patience, and persistence are required for secular legal systems to adjust to the needs of a new religious group; second, the group must be flexible and innovative to win these accommodations; third, the religious group must in turn accommodate or at least tolerate the core values of their secular host nations; and fourth, the community’s religious tribunals have to be sophisticated legal institutions, staffed by jurists well trained in both Sharia and secular law.

“A single imam making informal judgments for his members in a mosque will get no more deference from courts than a single priest or rabbi doing the same in the back of a church or synagogue,” he says.

Marriage again provides a good example of a working compromise between religion and state law, says Witte. States set the threshold requirements of what marriage is and who may and may not participate, but religious parties have the right to marry in a religious sanctuary, by a religious official, following their religion’s wedding liturgy.

States set the minimum standards of law for marriage, education, child rearing, and other domestic and family practices. Religions can add to them – but not subtract -- following the ceremonies, beliefs, and practices of their communities, coexisting within a framework of democracy and human rights.

“In the process of adjusting to the legal and cultural realities of their new homes,” says Witte, “Muslim religious minorities, much like their Catholic and Jewish counterparts, may eventually become legal and cultural leaders in succeeding generations of the West.”

The lecture honors the intellectual legacy of Don S. Browning (1934-2010), Alexander Campbell Professor Emeritus of Religious Ethics and the Social Sciences at the Divinity School of the University of Chicago and the first Robert W. Woodruff Visiting Professor of Interdisciplinary Religious Studies at CSLR. Browning was a founding figure in practical theology and a catalyst in a wide-ranging discussion about religion, marriage, and family.  John Witte called him “the dean of interdisciplinary family studies.”