Religious Arbitration, Family Law, and Constitutional Limits in Texas

In recent months, Texas Governor Greg Abbott announced a ban on “Sharia law and Sharia compounds” in the state, citing longstanding principles that U.S. and Texas law take precedence over conflicting foreign law. This position is reflected in the 2017 American Laws for American Courts statute and in an Attorney General opinion affirming that contracts violating Texas public policy cannot be enforced.
These commitments were tested in a North Texas family law case, where an Islamic prenuptial agreement called for disputes to be resolved under religious law. The Texas Supreme Court ultimately stayed the arbitration order and ordered review of the original arbitration agreement for "validity and enforceability."
Other recent developments - including video accounts of a Houston imam calling for boycotts of certain businesses and reports of a proposed Muslim-exclusive residential community (“EPIC”) - have prompted legislative responses such as HB 4211, which requires property transfer disclosures and ensures disputes are adjudicated under Texas and U.S. law.
How should courts weigh religious arbitration against constitutional and statutory protections? What legal tools exist to address disputes that implicate cultural or religious norms? How can Americans both respect religious diversity and uphold constitutional imperatives?
Featuring:

Qanta A. Ahmed, MD, Senior Fellow, Independent Women's Forum

https://www.qantaahmed.com/bio/

Professor Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution, Stanford University
(Moderator) Karen J. Lugo, Founder, Libertas-West Project

Episode Transcript

Speaker 1 (00:02):
Welcome to fedsoc Forums, a podcast of the Federal Society's
practice groups. I'm Ny kas Merrick, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock form programs, become a Federal
Society member today at fedsoc dot org.

Speaker 2 (00:18):
Hello, and welcome to the fedstock Forum webinar call today,
September twenty third, twenty twenty five. We are delighted to
host this discussion entitled religious Arbitration, Family Law, and Constitutional
Limits in Texas. My name is Matthew Sattel, and I'm
Assistant Director of Practice Groups at the Federalist Society. As always,
please note that all expressions of opinion are those of

(00:40):
the experts on today's call, as the Federalist Society takes
no position on particular legal or public policy issues. In
the interest of time, we'll keep the introductions brief, but
if you would like to know more about our panelists,
you can see their full bios at fedslock dot org.
Today we are fortunate to have as our speakers doctor
Kntelamed and Professor Eugene Voloch, and we are pleased to

(01:02):
have Karen Lugo as our moderator. Miss Lugo is the
founder of the Livertoss West Project. One last note throughout
the panel, if you have any questions, please submit them
through the question and answer feature in zoom so that
we will have access to them when we get to
that portion of the webinar. We do ask the question
submitted there both pertain to this discussion, and end with

(01:23):
a question mark. With that, thank you for being with
us today, Karen, the floor is yours.

Speaker 3 (01:29):
Thank you, Matthew.

Speaker 4 (01:31):
Thank you to the Federalist Society for hosting today, and
appreciation for the work that all the volunteer Practice Group
members do that organize webinars like this one. Many thanks
to doctor Kanta Ahmad and please see her very accomplished
bio in the link for this webinar. Also thank you
to Professor Eugene Voloch. His always topical legal blog is

(01:54):
great for both lawyers and non lawyers alike. In addition
to moderating today, I will lay some foundation as I've observed,
commented on, and consulted in some of the related pivotal
developments in areas around the world as well as the
United States. Current news accounts reveal that a no Sharia

(02:15):
ban has been introduced in Congress. If enacted, the legislation
is described as quote barring courts from enforcing any judgment, decree,
or arbitration decision based on Sharia law or any foreign
system that violates constitutional rights. Governor Abbott signed similar Texas

(02:36):
legislation in twenty seventeen. Approximately fifteen states have passed a
version of this statute called American Law for American Courts
or a lack of course. This rejection of foreign law
where it violates American standards of due process and other
civil rights protections already exists in comedy tests. Over the

(02:59):
last twenty years, I have tracked Aslamist activity that would
potentially trigger the protections of ALAC. I have spoken at city, county,
and state hearings to warn of results, much like Britain
and European locations, if accommodations and permitting are not structured
reasonably and equitably to constrain activity while providing enforcement mechanisms.

(03:24):
Transparency is also critical as a component when there is
a history of rejecting American foundational values and legal norms.
I testified before the Texas Legislature over several sessions on
the policy reasons for reinforcing state level imperatives of American
constitutional standards. However, my experience with developments in Minnesota between

(03:49):
the City of Bloomington and Daryl Fruk Mosque revealed practices
that have been repeated to some degree in other communities.
Whether city officials are overawed by applicants wanting to permit
a sighting of a mosque, or whether officials are simply
eager to prove inclusive intent, they often vote to locate

(04:10):
moss in residential neighborhoods with only basic limitations. This despite
contemporary indicators of heavy activity and attendance on websites or
evident at current locations. These vague limitations are complained of
being dissimilar to treatment of applications submitted by other religious institutions.

(04:33):
When such, I'm sorry. When much of familial, social, and
educational life is centered in the mosque, traffic and activity
levels may be surprising, and they provide for unusual strain
on surrounding residential use. Conflicts are inevitable, and less careful
structure is implemented. In part, the local government approach may

(04:57):
be understood in light of some Muslim applicants early threats
to sue under ar LUPA, the Religious Land Use Statute,
and of past Justice Department investigations that resulted in onerous discovery,
discrimination training at settlement signage at city hall, and periodic
data transfers for federal government analysis at the Daryl Furuk location.

(05:23):
Years of reported overuse, control of city park space and fields,
permit code and traffic violations left some residents exhausted, and
over years homes were sold to Moss congregants. One woman
who resided near the mosque described the developments over years
in her illustrated blog posts. Mosque leaders and city officials

(05:44):
grew exasperated and eventually charged her with criminal harassment. This
was triggered by posts illustrating charter school recess monopolization of
a city playground that included images of children. Robert Muse
of American Freedom Law Center argued her case to the
Eighth Circuit Court of Appeals and one vindication of her

(06:05):
right to speak on this matter of public concern under
the First Amendment.

Speaker 3 (06:11):
As detailed in my book.

Speaker 4 (06:13):
Despite our LUPA considerations, a fledgling Christian Nigerian church was
treated much more strictly in a subsequent permit application procedure
by the same city that permit was denied. While not
established as exclusively Muslim communities, may still develop this separatist character.

(06:35):
Many become closed, opaque, and leadership only interacts with the
surrounding community and culture on specified terms. Communities and states
have turned to legislation like alac as insurance, but ALAK
did not help. When a Texas Sharia Muslim marriage ended
in divorce, the wife filed her divorce case in civil court.

(06:57):
Although the two thousand and eight marriage was officiated by
imams in a North Dallas Muslim quote arbitration center, the
fact that the IAD prenup and marriage certificate both dated
the same day reveal a Sharia marriage performed in the
Dallas area was a stunning revelation. In the event of

(07:20):
a dissolution, the document states, quote the law of the
land will not be applied at all end quote. The
handwritten number six hundred and seventy seven on the prenup
may indicate the preceding number of ceremonies officiated at that
arbitration center. The terms on the face of this marriage agreement,

(07:40):
as quoted by the Texas Supreme Court, included the couple's
quote belief that Islam is binding on them in all
spheres of life. The agreement provides that quote any conflict
which may arrive between the husband and the wife will
be resolved according to the n Sunna and Islamic law

(08:02):
in a Muslim court or in its absence, by.

Speaker 3 (08:06):
A feak panel end quote.

Speaker 4 (08:09):
The agreement then explains how the members of a three
person panel will be selected and provides that the panel
quote will not represent the parties in conflict, but rather
serve as impartial arbitrators and judges guided by Islamic law
and its principles. According to the agreement, the majority decision

(08:30):
of the feak panel will be binding and final Professor
Bullock will discuss the legal and procedural aspects of this case.
But the enormous expense of the wife's effort to move
the divorce out of the tribunal through four courts over
two and a half years had to have been daunting.

(08:51):
Valiant American Muslims provided invaluable insight at two herring junctures.
Doctor Zudi Jazzer on June twenty first submitted an affidavit
to complete testimony that he was not allowed to bring
in the trial court, and he said the Islamic prenuptial
agreement is unconscionable and against public policy. The Islamic tribunal

(09:15):
will not enforce civil rights, US constitutional law or American
law over the provision of Sharia law. The Islamic tribunal
will apply Sharia law and will discount the testimony of
the wife and thus deny her equal protection under the law.
The prenuptial agreement will not provide for a fair distribution
of the marital assets to the wife, and the divorce

(09:38):
will deny her no fault divorce and may deny her
custody of her son under the application of Sharia law.
Iron Hersili, in her book Heretic says, where Western laws
generally set boundaries for what cannot be done, leaving everything
else permissible. With Sharia, the system is re reversed. The

(10:01):
list of things that can be done is very small,
while the list of what cannot be done overwhelms everything else,
except for the list of punishments, which is even longer.
I End quotes Ernest Gilner saying, in traditional Islam, no
distinction is made between lawyer and canon lawyer, and the
roles of theologian and lawyer are conflated. Expertise on proper

(10:25):
social arrangements and on matters pertaining to God are one
in the same thing. The arbitration center has been questioned
over time. The website mission statement once spoke of the
pre eminence of Islamic law, but now exhibits conflicting statements,
first saying that the quote objective is to follow state

(10:46):
and federal law, but article three says that the Islamic
Tribunal shall apply the principles of Islamic jurisprudence or FEAK,
and Article seven says that the judges of it and
judges are in quotations here must have a degree in
Islamic law approved by a renowned Islamic institution. There are

(11:09):
now similar centers in other states. While the tribunals announced
mission is now to deliver non binding arbitration, this marital
agreement was expressly binding. It is very rare for a
Muslim Sharia divorce to be presented to American civil courts. First,
the terms are not subject to resolution in the equitable

(11:32):
fashion that state law requires, and second, Muslims have reported
that the wife often faces tremendous family and most pressure
to keep the dispute within the Islamic system. American constitutionally
minded Muslims provided this kind of invaluable insights at the
Texas Supreme Court level as they submitted Amika's statements Again.

(11:55):
Doctor Zudi Jasser here's a short summation of his very long, detailed,
thorough letter. He said, if these systems are founded upon
documents and agreements that are opaque, deceptively executed, and riddled
with coercion, they wrote, the integrity of the entire precept

(12:15):
of religious freedom upon which they are supposedly based. And
Rahil Rosa, who worked for years in Canada to evaluate
and expose coercion in Muslim arbitration systems, stated, quote, Muslim women,
like all other American citizens, need the protections offered by
the American constitutional court system, which too often pushes them

(12:39):
away and forces them to fend for themselves with no
defense from the constraints of a foreign system contained right
here within the nation that was supposed.

Speaker 3 (12:49):
To be their home.

Speaker 4 (12:52):
Of note, due to the results of this investigation that
Rahil Rosa participated in, Canada banned all religious arbitration options
for marital matters since two thousand and five. Azrahenamani and
Sarriadine also submitted briefs as practicing Muslims who urged the
primacy of American constitutional due process protections. This case may

(13:18):
have finally been resolved according to correct constitutional standards, but
the fundamental challenge remains. Much that relates to life, politics, family,
and law occurs in the mosque, Islamic school or a tribunal,
and for the most part it stays there. Upon reports
of a Muslim exclusive city called Epic planned for north

(13:41):
of Dallas, Governor Abbott signed a law it quote ban
Sharia compounds in Texas. However, some are concerned that the
same secrecy stonewall will prevail. The new law would require
disclosure if the purchase is an interest in an entity
and not of real property. The law would prohibit discrimination

(14:02):
in the acquisition of or transfer of property or entity interests,
and the law requires that dispute resolution not to be
expressly limited to adjudication in a tribunal. The question remains,
as in all these scenarios, how to query, inspect, and
enforce when communities are capsules that include independent education systems,

(14:27):
societal structures, and dispute resolution centers. Victor Davis Hansen, in
his book The Dying Citizen, demonstrates that tribalism and individualism
are in absolute tension.

Speaker 3 (14:42):
Beyond tribalism.

Speaker 4 (14:43):
European and British examples confirm what we have seen in
parts of Michigan, Minnesota, and elsewhere. Islamism may act as
a screen around settlements and then drive them to become
politically and culturally hagemonic. Many Americans are also aware of
very recent news items that feature a mayor and Dearborn

(15:05):
and monishing a citizen who complained of street naming in
honor of a purported Hamas sympathizer. The mayor told the
citizen during the city session that he was quote not
welcome her and that the mayor would throw a parade
when the citizen departed. A proposed police patch has been
introduced with Arabic lettering in the nearby city of Dearborn Heights.

(15:30):
It was later withdrawn, and an imam has been recorded
patrolling areas near Houston declaring by megaphone that Muslim proprietors
should not sell alcohol, lottery, tickets, and tobacco. But America
has the singular advantage of brave, articulate, steadfast Muslim activists

(15:51):
who value constitutional ideas. These courageous and enlightened Muslims are
asking two questions of American lawmakers and citizens. Will a
way be found for Americans to protect religious Muslim exercise
and expression yet deny the authoritarian control and coercion of extremists?

(16:12):
When will too, When will American policy and religious leaders
finally recognize the value in consultation with proven enlightened Muslim
reformers and thinkers. In conclusion, Ian Hersili also writes in
heretic why Islam needs a reformation now?

Speaker 3 (16:32):
And I quote.

Speaker 4 (16:33):
In the Cold War, the West celebrated dissidents such as
Alexander Sultaniten, Andre Soakarov and Voslav Hovel who had the
courage to challenge the Soviet system from within. Today there
are many dissidents who challenge Islam, former Muslims and reformers,
but the West either ignores them or dismisses them as

(16:55):
not representative. This is a grave mistakes. Such as Toughekomide, Zudi, Jazzer,
Azar and Nomani and many others must be supported and protected.
They should be as well known as Sultannas and Sakarov
and Hovel were in the nineteen eighties and as well
known as Locke and Voltaire were in their day when

(17:16):
the West needed freethinkers of its own. And so next
one such Muslim commentator is here to speak for us,
and it is my distinct honor to introduce doctor Kanta Ahmed.

Speaker 5 (17:33):
Thank you so much, Karen that it is quite a
huge set of facts to follow, and there are a
number of things that come immediately to mind, and there
is a connection between the Muslim woman in Texas who
was asked to sign a prenuptial agreement which clearly denied

(17:55):
her of her constitutional American rights, and the connection between
the construction of a mosque that threatened and eventually dominated
an area. What we're seeing is the efforts of Islamism,
and I use that very specifically to dominate the public
space and dominate the individual. This is not about a

(18:17):
conflict with Islam itself. And we're using some words that
are often described or wielded in the press which have
very specific meaning. Number one, Sharia as a word appears
only once in the Quran, in one verse, and that

(18:39):
is important to notice. It only refers Sharia to the
way meaning a moral code, a path of doing good.
It does not specify a body of law. After the
Quran came a huge effort by jurists, all of which
is host boronic thought and that is loosely known as

(19:04):
Sharia and has four schools of thought and various as
you're describing jurists and various bodies of case law that you,
as scholars and your audience as legal scholars, will be
more familiar with than someone like me that practices Islam
and practices medicine, but comes across all of these conundrums
in the United States. I'm astounded to discover what has

(19:28):
happened to this one Muslim woman who probably represents many
other Muslim women, because it echoes very much what I
have seen in Britain, what is reported also in Belgium
and France and the Netherlands, which has been deeply researched
by Islamic scholars of the same thinking as you're describing

(19:50):
my colleagues Zudi and Usra elham Manea, a very important Swiss,
Egyptian Yemeni scholar of islamis how it isolates and subjugates women.
Islam itself gives the individual freedom to choose their partner
and specifically gives the woman the freedom to divorce. In fact,

(20:14):
any assets accumulated in the marriage during.

Speaker 3 (20:21):
Any assets that enter into.

Speaker 5 (20:22):
The marriage belonging to the woman will always remain hers
and indivisible at the end of the marriage, and she
has a choice if she wishes to divide them. The
concept that she would not be allowed to divorce and
be denied the privileges here in the United States is
astounding coming from a place like Texas, and I was
completely unaware of this. You brought this to my attention

(20:45):
after I learned about the epic city development in Texas
and wrote about that in Newsweek and spoke about that
with will Caine at length. And it tells me that
the project of Islamism is well underway here in the
United Slime States, and it is a war for the
secular place. This is about Islamism's effort to de secularize

(21:08):
the public space. I absolutely agree that we have freedom
of religion in the United States. It's one of its
extraordinary strengths that was put into.

Speaker 3 (21:19):
Place by the Framers.

Speaker 5 (21:20):
But freedom of religion sometimes has manifestations which limit freedom.
Freedom of religion and freedom of belief are sacrisanct, but
the manifestations of that which are going to confine and
restrict any individual in America in any way are not welcome.

Speaker 3 (21:40):
And that is what we're seeing here. So without question.

Speaker 5 (21:44):
US constitutional law has to act above these efforts of
what are an invented sharer, what are a legal fiction?
They are being presented as a religious right to a
trusting and naive and well educated but not informed American

(22:05):
legal body that is not familiar with Islamism.

Speaker 3 (22:08):
Let it come to Islamism.

Speaker 5 (22:10):
Islamism is a twentieth century political tatalitarian impostor posing as
the religion of Islam. It was founded in nineteen twenty
eighth Egypt. It believes in the manifestation of Islam only
through statehood. It is consumed with forming caliphates. That is

(22:33):
not how the history of Islam shows us. Whether there
was generally a Muslim ruler that ruled over a state
known that that entity is known as siassa or state craft,
and there would be a separate leader that would adjudicate
religious law, never overturning the rule of the kingdom, so

(22:58):
to speak. That's a very simplistic way of describing it.
There was generally separation between state and sharia. Sharia itself
in the Qur'an mentioned only once, generally focuses on civic
law and some penal code, and that has been modified

(23:19):
in many ways with the rise of Islamism, which we
can say the mothership of which is the Muslim brotherhood.
We have also seen the way that Muslim states, beginning,
let's say with Saudi Arabia, where I lived twenty five
years ago under a wahabi manifestation of Sharia law, which

(23:43):
rendered me a legal minor as an adult woman, even
though I was providing high level medical care. Those states
utilized Islamist versions to impose Sharia on the individual, whether
they were Muslim, whether they were non Muslim, whether they
were fluralist Muslim or of a minority sect, or irrespective

(24:09):
of their identity. It did not provide freedom of expression
or freedom of worship. Now the very epicenters the Engines
for promoting that ideology, sada Abia was chief among them,
but also the surrounding Gulf states have themselves repudiated Islamism

(24:31):
very emphatically.

Speaker 3 (24:34):
So Muslim brotherhood ideology is outlawed. In Egypt.

Speaker 5 (24:38):
The Egyptian public during the Arab Spring came out to
the strength of ninety three million individuals, overturning Mohammed Mercy,
who was a Muslim Brotherhood president of Egypt. So millions
of Sunni Muslims have overturned the Muslim Brotherhood when it

(24:58):
attempts to govern over Muslims. The Saudi Arabians have outlawed it,
the United Arab Emirates has outlawed it, and they even
had a boycott with Qatar because of disagreements over the
Muslim Brotherhood. What we're seeing now, and it's quite clear,
is this rejection of Islamism in the epicenter of Islam

(25:18):
itself is driving and has animated Islamism in the Western world,
Western Europe, and now here in the United States. And
what I'm saying is I am a Muslim who practices Islam.
I've visited the Mecca on pilgrimage. I pray, I give
my charity. I mean, I have absolutely a good connection

(25:40):
with my faith. I'm not an ex Muslim, I'm not
a former Muslim. I'm practicing Islam. But what I see
happening is a manifestation claiming identity as a religion when
it is actually a political ideology. I was deeply concerned
to see the proposed or for a building project in

(26:02):
Texas Epic City because it seemed to me on the
facts that I was provided essentially exclusionary of Americans that
were not of a Muslim identity. More concerning that it
was capturing generations of Muslim from cradle to the end
of the life, which is particularly focused on educating children,

(26:27):
boys and girls at the earlier stage, and then keeping
them siloed from the mainstream community. And that kind of
capture we best described, in the words of academic elhamnare
as a closed society. That's what you're describing where a
mosque in a residential area begins to encroach on the

(26:50):
local housing until a neighbor feels that there's no place
for her, as you're describing that in that case where
a woman was accused of some kind of harassment or
other violation. So closed societies are fundamentally dangerous. Closed societies
are an absolute aim of the Muslim brotherhood project, the

(27:14):
Islamist project, and close societies thrive in a secular, pluralistic
liberal democracy, which is very forgiving to people from diverse backgrounds,
whether they are ethnically or racially or diverse in any
other way, but that is strengthening this kind of fabric

(27:35):
which undermines our social cohesion. So if I am to
give any kind of helpful advice is when you're contemplating
these dilemmas, you have to ask yourself is there an
intention to impinge on the public space? And the answer
often will be yes, is there an intention to undermine

(27:58):
social cohesion? Whether it's an intention or it is not
an intention, it will probably be a measurable outcome. Is
that in violation to our spirit of being American as
well as the limits of our constitutional law. Why should

(28:19):
we be concerned about this? Why is there an effort
now in Congress for a no Sharier proposal? When you
say no Sharier ban, I assume the congressional leaders are
proposing we don't want Sharia law in the United States.
It is because they can sense that there is a
threat to the general.

Speaker 3 (28:40):
Liberal, pluralistic media.

Speaker 5 (28:43):
I think also the other salient heart in your story
is the fact that it got your attention that a
woman was mandated or somehow misled into signing a document
that ultimately undermine her constitutional rights. Women are the first

(29:04):
targets girls and women, so what we're seeing now in Europe,
in Britain, for many years in Europe is a demand
for specific schools to educate Muslim children, whether they are
learning the general curriculum or whether they want religious education

(29:28):
as well.

Speaker 3 (29:29):
This results in.

Speaker 5 (29:32):
A focused ghettoization of a particular cultural group that is
now being provided some secular education from the authorities and
religious education which is generally provided by Islamist groups, most
of Brotherhood acolytes or Islamist organizations. And so we see

(29:55):
in Britain very little girls. I'd be very interested in
the story of this woman who brought and finally achieved
the divorce. What is the story of the little girls
in her community. Is there veiling being mandated, including pre
pubescent veiling, which we're often seeing in Britain, little girls
aged four, five, six, seven being veiled as if they're

(30:17):
adult women. The veil itself is a whole nother discussion
that we can have. And once these women are captured,
they're generally subjected to a patriarchal sense of not only
how they should dress, but also how they should behave,
where they should move, what they should study. And it
is associated with early marriages, compelled marriages, or marriages that

(30:43):
must be within the community. And sometimes in Europe we're
seeing a very large percentage of the women having arranged
marriages that are arranged to marry individuals, often from Southeast
Asia migrating to Britain or migrating to Europe in order
to enter those families. So speaking about this might make

(31:05):
many people deeply uncomfortable, and even in the United States,
I face often calls of being Islamophobic, as does Zudi,
or as does Astra or Soraa, and that's been leveled
to me in person and also in print. But this

(31:27):
is not something that is Islamophobic. And if we can
just dispense with that term, islamophobia serves only as a
political and judicial shield to the Islamist or the Islamist project.
It does not shield a pluralistic Muslim, whether or not

(31:48):
I wear a veil in my.

Speaker 3 (31:50):
Day to day activities.

Speaker 5 (31:51):
The United States still guarantees protect Muslim individuals from hate
crimes and anti Muslims and aphobia. That is completely separate.
But to level this kind of scrutiny at individuals that
were preparing that prenuptial agreement or the presence and permitting

(32:12):
of a moscue in a residential area. That led to
essentially the domination of the public space and no room
left for anybody that wasn't a moscower or wasn't integrated
into that community. That's an exclusion of an American from
a public space.

Speaker 3 (32:30):
That kind of scrutiny is essential.

Speaker 5 (32:32):
Now, maybe the most and I'll keep my remarks brief,
but maybe the most important example that you could consider
is what has recently been declassified by the French government
in terms of how the Muslim Brotherhood operates in France.
And that was the most comprehensive report of the work

(32:53):
of the Muslim Brotherhood in a Western democracy. It was
a report that was published eventually in the Le Figaro
because France felt it was so important people had to know.

Speaker 3 (33:03):
And it's over one hundred pages.

Speaker 5 (33:05):
It shows that the Moslim Brotherhood is operating through schools,
through local councils, through school boards, through over two hundred
and eighty NGOs, networks of mosques numbering over one hundred
schools to teach the Quran, with tens of thousands of students.

(33:25):
I think sixty six thousand students studying the Quran in France,
one third of which were most in brotherhood associated and
twenty one thousand students in some form of an Islamic school,
all of which was tolerated and allowed by the French government.
And what that leads is to an incredible intellectual ghettoization

(33:47):
as well as a community ghettoization separate from any economic
or demographic or employment or migrant hardships that might also
fragment society. Most importantly, they revealed the Muslim Brotherhood is
operating less like a religion and more like a secret society,

(34:09):
because there are a thousand designated Muslim Brotherhood leaders that
would meet clandestinely, and they then interact with their communities
with local politicians that are beholden to an electorate that
is now heavily penetrated by the Muslim Brotherhood. This is
how by engaging in local politics that an issue that

(34:33):
seems social, the divorce of a woman who was married
to Muslim man, now is actually part and parcel of
a major effort to promote the identity of Muslims in
America to be in line with the Islamist project, and

(34:54):
that is ultimately denying a Muslim woman her right to divorce,
which Islam does grant to a woman not only a
Muslim Man. One observation that's come from the research of
Elhamnea into exactly these problems, and there's a marvelous book
which talks about the perils of nonviolent Islamism. Every lawyer

(35:19):
interested must read that treatise. Is that many of these
populations where this is happening are coming from Pakistan, country
of my family's origin. I'm Bangladesh, and this seems to
be very common in Southeast Asian communities and it is
something that is desired. And so if I can maybe

(35:43):
dis closed, I want you to understand Islamism, however much
it wants to be branded as such. Islamism is not Islam.
Why does it seek to be branded as Islam? Because
saying it is Islam grants it religious freedoms and protections,
particularly guaranteed by the United States. Number two, if Isamists

(36:07):
are claiming a religious practice is privileged or should be
accommodated in the public space, I think that has to
be questioned. Even as I believe in the right for
all religions in the United States to have a place
of worship, to be able to invite somebody into their faith,

(36:28):
to be able to observe whatever rituals. But when it
begins to encroach on the public space and it begins
to drive the secularization, that then threatens our fabric for
all Americans, including pluralist Muslims. And finally, if you are
going to enter into any of these discussions inside or

(36:49):
outside of a courtroom, be prepared to be tarred with
the charge of Islamophobia, which has a huge machinery behind it.
Even as I said that the Gulf country's Saudi Arabian particular,
where I've been invited and honored for my efforts to
combat Islamist extremism by the Saudist, they are also proposing

(37:12):
to normalize into international law the concept of Islamophobia, because
they are seeking to create structures where international law, which
is generally Western and secular, is going to be put
up against an Islamist version of an alternative.

Speaker 3 (37:33):
And so.

Speaker 5 (37:35):
This is tremendously charged. And I could see how you
describe this woman going through tribunals at several levels of courts,
she did not encounter a judge who could come who
could see beyond that, and whether that was lack of
information or intimidation or sympathy with Islamist viewpoint, we very

(38:00):
much need to work with jurists so that they can
expose Islamism for what it is. There is some very
important scholarship on this, which which I often refer to
my writings in the form of the work of Bossam TV,
who is a Damassine origin German scholar on Islamism. But

(38:22):
it is work that comes at a high price, and also, unfortunately,
in our media environment in which I'm engaging frequently, additionally
becomes a further lighting lightning rod which then can trigger
real anti Muslim xenophobia. But Islamism, it's being presented as

(38:43):
this solution for Muslims, particularly in the West, it is
not a solution in actually the source of the crisis.
And I'll stop here.

Speaker 4 (38:56):
Professor Volak, we would welcome some remarks on how all
this case did proceed and what the final resolution was.

Speaker 6 (39:06):
Yeah, thinks I'm going to say the details of the
case because I think we're talking about here something much more,
much broader, and I've heard We've heard a lot about
Islam and Islamism and what should count as true Islam
and such. I've wanted to talk about American law and
American history. So America one of America's most prominent contributions

(39:29):
to human rights is religious freedom. It wasn't invented by
the US. I mean, the Dutch are pretty decent on
it back in the day. But it was a major
element of American of American equality and American American freedom

(39:50):
that we've tried to maintain throughout American history, and that
has included, of course, freedom for all sorts of religious groups,
both religious groups that were trying to be integrationists, that
tried to work within society, and those groups that were
very much self ghettoizing. They amish to take to give

(40:12):
an example, the Puritans back in the day were also
self ghettovizing too. They didn't respect religious freedom, perhaps as
much as we would have liked, but certainly many other
groups were this way. Today, of course, we see it
in plenty of other communities, Orthodox Jewicsy or classic example.
So American religious freedom being about freedom, being about something

(40:38):
that operates even as to groups that are not like
our groups, has long protected groups that are somewhat isolationists.
It has long protected, to give an example, of course,
all familiar to all of us, groups that want to
start religious schools in part precisely to make sure that
their children are educated in a particular religious community. Some

(41:00):
of those are relatively at least like modern Catholic schools,
are relatively aimed at at at integrating people into into
broader American life. Some ultra orthodox Jewish schools are not
yet they're they are of course protected by religious freedom.
What about groups that have political ambitions, Well, we're well

(41:22):
acquainted with one of them, and that was the Catholic Church,
of course. That was one of the major advances in
American religious freedom law over English law. Is that England
viewed Catholicism as as dangerous and in some respects not
quite outright outlaw, but certainly certainly very discriminated against religion

(41:49):
because it was seen as part of a foreign religious
movement that had political ambitions that did not itself respect
religious freedom. And it's true Catholicism of that era did
not respect religious freedom. It had as its leader actually
someone who was in fact a political ruler if he

(42:11):
ruled the pope rule to papal states. And of course
it also had other religious figures, most prominently French the
worst kind, but also Spain who were throughout much of
the history of let's say the sixteen hundreds and fifteen
hundreds and seventeen hundreds in England were foreign countries that
were overtly Catholic. Yet by and large American law respected

(42:36):
Catholic religious freedom. Allowed Catholics to have to have religious schools,
allowed them to have religious accommodations such as sanctity of
the confessional, which is something that emerged into American law
largely through Catholic groups. And there was some hostility and
perhaps some justifiable hostility against Catholicism, people Sayingthic Catholicism is

(42:59):
bad and very and it may be than many strands
and Catholicism, especially in the eighteen hundreds before the modern
I think much more pro religious freedom. Catholic Church were
dangerous in many ways, but American law protected them. To
give another example of what American law protected this, American
law has long made it possible for religious groups to

(43:22):
live together in religious communities. And generally speaking my senses,
you know, there are a lot of these religious communities.

Speaker 7 (43:30):
People don't really want to move in there. If you're
not Amish, you probably don't want to live within an
Amish community. If you're not an Orthodox Jew or ultra Orthodox.
Let's say, you probably don't want to live in a
community that is highly ultra Orthodox. Sometimes people would not
have just tried to buy houses there. Sometimes people would

(43:52):
not have been allowed to buy houses.

Speaker 6 (43:53):
There because the community sort of pressured people not to
sell to them. You know, that's an interesting question whether
that's consistent with fair housing law. Interestingly, this Texas law
that aimed to limit this Muslim community actually was a
limitation on pre existing Texas law which actually allowed religious organizations, associations,

(44:14):
and societies to have religiously exclusive exclusive communities. Again, I
think that's been long standing part of American religious freedom.
Another part of American religious freedom is that we have
not decided what true Catholicism is, or what true Judaism is,
or true Islam is, or even what true what maybehaps

(44:36):
especially what true Protestantism is. Right, So it may very
well be that Islamism isn't true Islam in the sense
that real Muslims ought to believe. That is no concern
of American law. American judges are precluded by the First
Amendment from past from making such judgments. If there are

(44:58):
some people who believe in one understanding of Islam, they're
protected by religious freedom. There are others who believe, in
other understanding, they're protected by religious freedom if they want
to organize some of their religious bodies in a relatively
secret way. Nothing says religious freedom is limited to people
who are willing to, I don't know, put themselves on

(45:19):
some list of official religious leaders. American law doesn't keep
such lists. Likewise, if they have a political agenda or
if they want to de secularized society. We certainly know
many groups in America, predominantly Christian groups, who would like
to de secularized society. They're free to do that. Now,
there are certain things they cannot they cannot do consistent

(45:40):
with secular law, but they can certainly advocate for it.
Nobody will shut down a Christian church or a Christian
school on the theory that well, they're trying to aim
to de secularized society, because how secular society should be
is itself a proper subject for religious and political Other example, arbitration,

(46:04):
Religious arbitration has long been practiced in America. My understanding,
it had chiefly been practiced in two contexts, one which
was for Christian churches when they were disputed, when they're
debating things, having to do with church property. In fact,
American law basically sharply limits the ability of secular courts
to resolve disputes among religious groups or within religious groups

(46:28):
over who's the real authority within this church. Let's say,
who really gets to run this or own this particular
piece of property. That could only be done through neutral
principles of law. And sometimes there may be deeds that say,
I donate all this money to this church only so
long as it remains Orthodox, not Orthodox with the capital
of but a lower case. Well, that's not something that

(46:49):
a secular court can conclude. In fact, it was in
eighteen seventies that Supreme Court first made clear that it's
not something that a secular court could conclude. What is
seen as the proper way of dealing with that, well,
you defer to the religious arbitrations within the religious body.
So some bodies may have a chief synod or some

(47:10):
other kind of religious court that decides which particular let's say,
rival claimant to the property of some particular congregational church
gets to prevail. So that's one form of orgitration that's
been long standing. The other, of course, is Jewish arbitration.
Orthodox Jews are generally speaking discouraged. I oversimplify here, you

(47:31):
know famous line three Jews, four opinions. So I would
hesitate to say, you know, I'm not really that Jewish.
I'm irreligious myself, but certainly as an ethnic Jew, I
feel the same way. So I hesitate to say something
about what Jews believe. But what many Orthodox Jews believe
is that it is not proper to bring religious disputes

(47:52):
in front of secular courts. So religious disputes are routinely
resolved through a excuse me, not even religious disputes. Disputes
within the Orthodox Jewish community could be commercial disputes are
resolved through religious courts, which called Each one of them
is called debated in and it's as I understand, it

(48:12):
usually has three rabbis on it, and they pass judgment
on this. Some of this may be binding arbitration, which
is then contractually, as a matter of secular law, contractually
binding on the parties. But even in the absence of that,
of course, within a title in its community, there's going
to be a lot of pressure for religious juice to

(48:33):
adhere to that American Religious Freedom law, Muslims are justice
as entitled to have those kind of arbitral bodies as
Jews are. What about family law, Well, in fact, my
understanding is that family law in very many religious communities
is very much or things having to do the marriage

(48:54):
and divorce are very much something that is considered through
the lens of the religious group, and in particular among Jews,
women in order to remarry after they get divorced need
a so called get, which is a religious religious divorce.
Most American courts that have considered this have said that

(49:15):
a secular court cannot order the giving of a gat.
So if a woman wants to be free to under
a religious law to remarry, she has to go to
a religious tribunal to get this get, and then the
religious tribunal will often order the husband to produce the get,
and there are a lot there's a lot of tension
as a result. But generally speaking, unless one is willing

(49:36):
to say, you can't have a Jewish arbitration, you can't
have Christian arbitration, you can't have secular arbitration. Unless one's
willing to completely reject arbitration, well then I think Muslims
aren't titled arbitration as well. So it's American law, it's
not like just religious law or foreign law. It is
American law that religious freedom is protected. This is American law.

(50:00):
Groups are entitled to be in America and to try
to be insular or not insular, to try to be
secularizing or desecularizing, to have their own conventions and their
own practices and often their own communities. Now, of course
there are limitations on that, and rightly, so the important
factor is the limitations. Can say we're going to single

(50:21):
out some religious group because we think that they're dangerous,
we think they have political ambitions we think there or
we think they are unfair to the women in their
midst or whatever else. By the way, a charge that
has been levied at very many religious groups, including Christians
and Jews, often correctly, including Catholics, often correctly. Rather, there

(50:43):
are generally speaking secular standards of behavior that potentially are
applicable to a wide range of people, including religious behavior.
So just just to give an example, indeed, if a
state wants to completely ban religious discrimination in a housing,

(51:04):
it could do that. Probably that would be a secular standard.
It's an interesting question whether there might be a free
exercise close exemption. Maybe not. It is that many states
as a matter of just religious freedom of principles. Try
to accommodate groups, not and particular groups, but any group
that wants to have religious communities. To take another example,

(51:25):
family law is considerably regulated. So many states, for example,
provide that a spouse gets a particular is entitled to
particular share of a property settlement and may not waive
that through contract, except through certain means, certain kinds of
prenatural agreements. If indeed, a state were to say that

(51:45):
divorces cannot be arbitrator or a property cannot be arbitrated
in a divorce, then that could apply equally to Muslims.
Again would have to apply to Jews and to others
as well. Give another example, My understanding is that most
states do not allow our tration of child custody disputes,
and that is in part because arbitration is a matter
of contract. The parties can enter into a contract, but

(52:07):
a child cannot. So to the extent that the child
custody dispute adjudicates the interests of the child, it may
be something that again can't be arbitrated, not just by Muslims,
but by Jews or by anybody else. You can't have
even a completely secular arbitral provision. Likewise, in the Nraid case,

(52:31):
there was a provision having to do with prenuptial agreements
and arbitration. State law provided that certain prenatural agreements had
to follow certain state law rules, and the Texas Supreme
Court said that those rules needed to be followed and
hadn't been properly followed below. So I think that's fine.

(52:54):
But again, note none of these rules say, oh, we
find this religious group to be especially suspicious because they're insular,
or we find this religious group to be particularly bad
because they have some kind of political ambitions. The rules
have to apply equally to all religious groups, regardless of
whether they think they're ultimately a force for good or
ill in the world, because, of course, most natural thing

(53:17):
is to assume your religion is a force for good
and other religions are a force for evil. Sometimes you
may even be right, but that cannot be under American
religious freedom principles of position that American law follows.

Speaker 5 (53:29):
So this is.

Speaker 6 (53:30):
A big, big picture of you. We've run a long time,
I think, the three of us. I see there may
be six minutes left if I'm right that this is
an hour long. So I want to make sure there's
time for questions, but I just wanted to lay this up.
There's a long standing, I think very worthy tradition of
American religious freedom law. It's protected Catholics when they were

(53:54):
viewed to scans, It's protected Jews when they were viewed
to scants. It protects religions in recognizing that sometimes religions
are not fair to members of the religious group, often
to women members of the religious group. But as a
general matter, it does not say, oh, this isn't real
Judaism or real Catholicism or real Islam, and therefore it

(54:15):
is unprotected. So I want to close with that and
see we'll have a hope sometimes for our questions.

Speaker 3 (54:21):
Matthew, do you have any audience questions?

Speaker 2 (54:26):
Yes, I do. This is one from John Scheller. He
asks one of the Federal Arbitration Act preempt all state
law purporting to ban religious arbitration. Professor volok So, I'm
not an expert on specifically the Federal Arbitration Act.

Speaker 6 (54:47):
I do know that there are that there are certain
kinds of arbitral agreements that might be voided as contrary
to public policy. For example, if, for instance, by the
way this is an argument that sometimes in may re
regard to Muslim arbitration, if there's evidence of discrimination based
on race or sex by the arbitrators, My understanding is

(55:08):
that that might be indeed be precluded. I do think
as a general matter, arbitration is something that has long
been favored in the American legal system, chiefly because it's
a way of resolving disputes ordinary commercial secular disputes a
more quickly and less expensively. But again, under American religious

(55:31):
freedom principles, if you're entitled to do something for religious purposes,
so for secular purposes, you're entitled to do the same
thing for religious purposes.

Speaker 4 (55:39):
I would add that when we reach a point where
the conflict of laws, the arbitration system is in such
deep conflict with American constitutional protections that the religious shroud
around what would be religious arbitration is is compromised because

(56:02):
the entire in this case, the coercion behind the agreement
we are not sure of.

Speaker 3 (56:10):
We don't know.

Speaker 4 (56:10):
We hear commentators discuss what likely happened, But what we
do know is that the face of this agreement, and
there were several other entries regarding the child, shall be
raised as a Muslim, any custody agreement would be resolved
under fee all of these issues that we look at

(56:34):
as requiring a degree of impartiality, and certainly if two
parties have agreed and gone into an arrangement like this
as what we might say consenting adults. But a woman
who has passed a piece of paper, who expects that

(56:54):
this is part of state marriage documents, is what her
testimony was. She signs this and then later finds out
that she gets thirty two dollars among all of these
other issues that are to be decided by this panel
of three quote arbitrators judges who are not even cognizant,

(57:17):
we don't even know if they are trained, and what
her rights and protection should be granted, it is possible
to enter an arbitration agreement and surrender to that, but
in these cases that's the big question. What did the
woman understand she was giving up? What did she understand

(57:38):
her status would be at the point that there may
be a reason to challenge the entire arrangement.

Speaker 6 (57:44):
So I just want to highlight there are two separate
things going on here. One is a question there's adequate notice,
let's say, and by the way, that's an issue that
sometimes comes up with a secular arbitration too. We didn't
know that there would be an arbitration provision sometimes that
could be a basis for setting it aside. So and
again that's just a standard, standard secular principle that would

(58:06):
be applicable regardless of the religious nature of the arbitration.
But the other thing is about supposed conflict with American
constitutional norms. So here's an American constitutional norm, right to
civil jewey trial. It's right there in the Seventh Amendment.
It's present in basically every American constitution. But of course
arbitration waives that right. People are entitled to do that.
Another norm is that indeed judges are not chosen based

(58:29):
on religion. But again, if for a century at least,
but probably more American many American Orthodox Jews have resolved
their disputes by turning them over to Baitin's which where
the people are chosen because they're Jewish, because they are rallies,
and they apply religious law. So generally speaking, people are

(58:50):
entitled by contract to provide for the application of law,
is that is, religious, to provide for application of law
in a way that does not go along with all
of the American constitutional rules. So again one might say
there could be, for example, principles limiting arbitration, for example,
prohibiting sex discrimination, in valuating the testimony of witnesses, and

(59:14):
such which you know, again, this could be secular principles
that could be insistent on for all religious tribunals. But
I don't think we just categorically condemn arbitration simply or
whenever it's inconsistent with kind of the way that American
courts operate, precisely because under American law, under the Federal
Arbitration Act, American law provides that people can indeed get

(59:38):
out of a system which has particular kind of procedural
rules and go to a system that has different procedurals.

Speaker 4 (59:48):
Matthew, if I could just conclude, I don't think we
ever reached there may be some suspense the conclusion.

Speaker 3 (59:55):
Of how this case was resolved.

Speaker 4 (59:58):
But the Supreme Court in Texas did rule that the
lower court's abuse discretion. They stayed the ruling that the
woman was to go back to the tribunal, and they
did grant her the civil hearing.

Speaker 3 (01:00:14):
And so I'm saying that on.

Speaker 4 (01:00:17):
The face of the arbitration agreement, there should have been
analysis for whether it was valid and enforceable under US
constitutional law.

Speaker 3 (01:00:28):
Could I say something, Karen pas.

Speaker 4 (01:00:32):
Man, I know forout our timestop Matthew, I think you
can give the last comments.

Speaker 2 (01:00:40):
Thank you.

Speaker 5 (01:00:41):
It's very fascinating to listen to my colleagues, particularly Professor Vollock,
and everything that he says is authoritative and obviously.

Speaker 3 (01:00:53):
Absolutely true.

Speaker 5 (01:00:55):
That is exactly the vulnerability of the United States.

Speaker 3 (01:01:00):
And we keep coming back to the fact.

Speaker 5 (01:01:02):
That this Muslim woman was adjudicated on by her own
religious leaders on the basis that they're operating in some
kind of Islamic legal process. The nature of the Islamic
rulings that are being propagated in this instance and many others,

(01:01:27):
are an Islamist sharier vacation, if you want to call it,
that of laws in Muslim societies, and so these women
are completely captive to an Islamist version of their reality.

(01:01:48):
And while all Islamists are Muslim, most Muslims are not Islamist.
The Islamist project is absolutely committed to forming Islam through
a concept of statehood, and that means replacing our democratic
surroundings with what they see as a caliphate. They're animated

(01:02:10):
by a virulent, lethal, cosmic enmity with jury. They're obsessed
with purity and authenticity. And that's not my opinion. That
is a body of scholarship for decades that exposes Islamists
masquerading as a religion. And because we are so well

(01:02:31):
protected for religious freedoms, the Islamist project is exploiting that
space in the United States and imperiling Muslims, Muslim women
and girls in particular, but Muslim men also. And unlike
the Amish or the Orthodox Jewish person, or the Catholic

(01:02:52):
or the Protestant or any other religious group, we have
a unique problem with nonviolent is that converts to violent
evolutionary Islamist jihadism. That doesn't mean that a woman who
was not arbitrated on for the end of a marriage
fairly is on some kind of pathway or even in

(01:03:14):
a community that's on a pathway to violence. But this
kind of intolerance is growing. It's here in enclaves. It's
gaining strength, and it gains legitimacy and currency because of
the protections afforded to all people of faith, and that
itself is the hazard to our secular, liberal democracy. That

(01:03:36):
protects all of us irrespective of what we believe.

Speaker 3 (01:03:40):
And so it does present a conundrum.

Speaker 5 (01:03:43):
It is different than other ideologies that don't have this
enormous machinery behind them that is driving, for instance, post
October seventh, some of the most virulent and lethal Islamist
antisemitism that we seen in almost living memory. So I'm

(01:04:04):
very concerned that the American law, as exquisite as it is,
is privileging this group at the expense of a pluralist,
heterodox Muslim women like myself. Very few Muslim women have
the privileges even in the United States that I might enjoy,

(01:04:25):
and a lot of it is because they are confined
to their own patriarchs in their own community and society.

Speaker 3 (01:04:33):
Thank you.

Speaker 2 (01:04:34):
Well, Thank you all. This is a great conversation. I
wish we could talk longer and get to more of
the questions, but able to respect your time, so on
behalf of the federal of society. I want to thank
our experts for your valuable time and expertise today. I
want to thank our audience for joining and participating. We
also welcome mostener feedback by email at fedsock Forums at

(01:04:56):
pedsock dot org. As always, keep an eye on our
website for more upcoming virtual events. Thank you all for
joining us today we are rejarned.

Speaker 1 (01:05:06):
Thank you for listening to this episode of fedsoc Forums,
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information about the Federal Society, the practice groups, and to
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