Several of you have forwarded to me news from the UK that sharia courts have quietly been established there. Excerpt (emphases in bold are mine):
Islamic law has been officially adopted in Britain, with sharia courts given powers to rule on Muslim civil cases.The government has quietly sanctioned the powers for sharia judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence.
Rulings issued by a network of five sharia courts are enforceable with the full power of the judicial system, through the county courts or High Court.
Previously, the rulings of sharia courts in Britain could not be enforced, and depended on voluntary compliance among Muslims.
It has now emerged that sharia courts with these powers have been set up in London, Birmingham, Bradford and Manchester with the network's headquarters in Nuneaton, Warwickshire. Two more courts are being planned for Glasgow and Edinburgh.
Sheikh Faiz-ul-Aqtab Siddiqi, whose Muslim Arbitration Tribunal runs the courts, said he had taken advantage of a clause in the Arbitration Act 1996.
Under the act, the sharia courts are classified as arbitration tribunals. The rulings of arbitration tribunals are binding in law, provided that both parties in the dispute agree to give it the power to rule on their case.
What do you want to be that Muslim women who are victims of deomstic violence will not be effectively free to take their cases to civil court, but will be compelled by family members and members of their communities to go to sharia courts, where the rules of evidence are absurdly weighted against women? Good luck with that, Britain.
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Here I'm recalling, albeit vaguely, constitutional challenges of inheritance laws based on illegitamacy, adoption, etc.
Those challenges, really, were over terms. If you divide your property equally among your three children, and it turns out you actually have another child, it is entirely likely the courts will, in fact, give all four children a fourth of your property.
As is what 'your children' means in the first place...in some places it's always meant 'All biological children', and in others it used to mean 'Legitimate children', until the courts found that unconstitutional. (I'm pretty sure it's always included adopted children...that's half the point of adoption!)
This is both for 'default', without-a-will inheritance, and with a sufficiently vague will, aka 'all my children', or whatever, at which point the courts will operate with the assumption you were trying to be 'fair'.
The 'illegitimacy' issue was just the courts recognizing that we have started regarding children as actual children of biological parents regardless of the state of the parent's marriages, so the default references to someone's children, in inheritance, needed to change to include them. (As opposed to them being at the end of the line, only inheriting if there were no legitimate heirs.) In much the same way that the law had previously changed the default to include women.
However, once you hit a certain specificity, the government really has no business interfering in inheritance. If you actually choose to leave all your property to one of your children, and nothing to the other, that's your business. If you choose to leave all your property to your male children, and none to your female children, the courts will award any male heirs that show up equally, including illegitimate ones, and no female ones at all. If you explicitly only include legitimate male children, that's what you get.
You seem to be referring to laws which govern the interpretation of wills. My post is referring to the laws of intestate succession that are enacted by state legislatures: the rules of descent and distribution that a court applies when there is no will. As I explained above, the greater society has an interest in these laws and requires that they reflect principles of fairness and equity. Presumably, if a shariah court in the US were given the authority to decide such cases, their decision would not be guided by fairness or equity, but the dictates of shariah which require that a female heir receive half of what the male heir receives. That's arbitrary and contrary to the public interest. Such laws have general import as they affect the rights of more than one generation and many who are not present to assert an interest. It would not withstand scrutiny in any other context. Why would we require fairness and justice in our own state intestasy laws and yet tolerate arbitrary laws in a shariah court?
Presumably, if a shariah court in the US were given the authority to decide such cases, their decision would not be guided by fairness or equity,
And there entire point of my original post is that such a 'court' cannot be 'given' authority to decide anything. These are binding arbitration courts, and everyone involved must be willing to go to them. (Although, as I pointed out, all too often companies make such agreement part of doing business with them.)
To postulate this 'courts' involvement in interstate succession would require that everyone who could inherit under normal rules, and the deceased before his death, agreed to use them. And they they could get screwed up by some extra child popping up after his death who hadn't agreed to such rules. This is flatly absurd because if the deceased wished to use such rules all he'd have to do is write a will.
This is a good article on the topic. It probably makes the case more clearly than I have:
http://www.chroniclesmagazine.org/?p=731
If you want to argue against binding arbitration courts, I'm all for that. They're horrible ideas. No one gets their own courts. If they want to set up their own contracts, fair enough, but they get debated in normal court.
I just find it rather absurd that suddenly conservatives are finding these courts are horrible things when there might be 'pressure' on women to abide by their decisions, when companies have been actually forcing people to agree to binding arbitration as a price of doing business for over a decade, and thus weaseling out of any form of liability towards their customers.
I also find it rather odd that you're still talking about inheritance. The only way that someone's will could possibly be arbitrated in such a court is if he'd stated it should be, in the will. (And, pretty much all the inheritors and anyone with a reasonable claim to the estate would have to agree, or it'd get bumped to a real court.)
And people can pretty much state whatever the hell they want in their own will, and it seems somewhat surreal that you keep, essentially, arguing they shouldn't be able to leave twice as much to their sons as daughters...aren't you guys supposed to be the 'leave us alone' party? If someone chooses to leave twice as much to one gender as the other, and appoint an organization that understands that decision as the will's executor, on what legal grounds, exactly, are you objecting to that? What constitutional principle does that violate?
Are you really attempting to argue that laws covering sexism should apply to private individuals? Do conservatives really want that?
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