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A law we don't need

Op-Ed

Oklahoma's amendment prohibiting courts from considering Islam's Sharia law in decisions is the product of fear-mongering.

November 10, 2010|By Michael A. Helfand

The answer is not in state or federal court. The establishment clause of the 1st Amendment prohibits government courts from rendering a view regarding religious doctrine. And deciding what the appropriate responsibilities of a pastor or imam or rabbi are, and whether they have been fulfilled, would generally amount to rendering such a view. As a result, the court could only dismiss the case. However, the pastor, imam or rabbi could turn to a religious tribunal, and a U.S. court could later confirm the decision and give it legal force.

Legislation banning religious arbitration is deeply misguided. The decisions of religious tribunals are unenforceable unless they comply with public policy. And we need them to address cases that constitutional doctrine prohibits from being litigated in government courts. In the end, allowing state and federal courts to "consider" the findings of religious tribunals for the purposes of "confirmation" doesn't violate cherished religious freedoms, it enhances them.

Laws like Oklahoma's "Save Our State" amendment pander to unfounded fears. Instead of saving the nation, they merely add to its list of problems.

Michael A. Helfand is an associate professor of law at Pepperdine University and associate director of the university's Glazer Institute for Jewish Studies.

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