Last week Emory University law professor John Witte, Jr. laid out a bold but reasoned approach on how to accommodate sharia (Islamic law) in the United States and other Western nations — one that protects religious freedom and human rights.

“The current accommodations made to the religious legal systems of Christians, Jews, First Peoples and others in the West were not born overnight. They came only after centuries of sometimes hard and cruel experience, with gradual adjustments and accommodations on both sides,” said Witte, director of Emory’s Center for the Study of Law and Religion (CSLR). “Many modern lessons can be drawn from these experiences for sharia advocates.”

Witte’s lecture, to a packed auditorium at Emory Law School on Jan. 25,
came on the heels of a U.S. Court of Appeals 10th Circuit decision in favor of sharia in Oklahoma. In late 2010, Oklahoma voters approved a proposed constitutional amendment that would prevent state courts from considering or using sharia. Earlier this month, the appeals court upheld an injunction blocking the vote on the basis of religious freedom.

Witte’s approach:

• Time, patience and persistence are required for secular legal systems to adjust to the needs of a new religious group

• The religious group must be flexible and innovative to win these accommodations

• The religious group must also accommodate or at least tolerate the core values of their secular host nations

• 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.”

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, Witte said. He offered the institution of marriage as example because it 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?” he asked. Arranged marriages? Polygamy? Child brides?

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

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 sharia court oversteps its authority? When a single-sex Muslim school that does not “spare the rod” is sued for gender discrimination or child abuse?

Catholics have faced these challenges, Witte said. They went from the “pilloried pariahs” of mid-19th century America to the 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. And Catholic schools, from private kindergartens to Notre Dame, went from being viewed with suspicion and skepticism to being “the envy of the nation,” he added.

Diaspora Muslims in 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, said Witte, as well as the option to have Jewish courts decide certain domestic and financial affairs.

Marriage again provides a good example of a working compromise between religion and state law, said 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,” said Witte, “Muslim religious minorities, much like their Catholic and Jewish counterparts, may eventually become legal and cultural leaders in succeeding generations of the West.”

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 at Emory. He delivered the inaugural Don S. Browning Lecture entitled “Shari’a in the West? What Place for Religious Family Laws in America and Other Western Democracies?”