Did you hear the story from, of course, Florida about a judge ordering the use of sharia in a lawsuit over mosque leadership? The St. Petersburg Times had a write-up with an intriguing lede:
The question of what law applies in any Florida courtroom usually comes down to two choices: federal or state.
But Hillsborough Circuit Judge Richard Nielsen is being attacked by conservative bloggers after he ruled in a lawsuit March 3 that, to resolve one crucial issue in the case, he will consult a different source.
"This case," the judge wrote, "will proceed under Ecclesiastical Islamic Law."
Nielsen said he will decide in a lawsuit against a local mosque, the Islamic Education Center of Tampa, whether the parties in the litigation properly followed the teachings of the Koran in obtaining an arbitration decision from an Islamic scholar.
The suit was filed by several men who say they were improperly ousted as trustees in 2002. The dispute may decide who controls $2.2 million the center received from the state after some of its land was used in a road project.
But attorney Paul Thanasides last week appealed Nielson's decision with the 2nd District Court of Appeal, saying religion has no place in a secular court.
His client: the mosque.
The story had a lot of information, but it also left me with a lot of questions. I've seen enough disputes among co-religionists to know that judges usually shy away from trying to decipher religious codes or doctrine, no matter how pertinent they are to the conflict. Even in an arbitration of a dispute where two sides agreed to abide by their religion's dictates - as seems to be the case here, courts tend to avoid resolving the dispute using those religious dictates because competing sides might have competing ideas about which dictates are applicable or how they should be interpreted. It's just a hot mess.
So I wanted to learn more about why the judge decided to go for theological analysis rather than applying the jurisdictional law.
We do get some fantastic quotes from the lawyer for the mosque, who argues that Florida law should apply in Florida courts with respect to secular endeavors. And we got two views on whether this is problematic or not:
Markus Wagner, a professor of international law at the University of Miami School of Law, said it is not improper for a judge to use foreign law in an arbitration if all the parties agree to do so.
"If we both sign a contract agreeing to be governed by German law, then Florida courts will interpret German law," he said.
Others are less certain, including Neelofer Syed, a Tampa immigration lawyer who is a guest lecturer on Islamic law at Stetson University College of Law.
The mosque, she said, is incorporated under the laws of Florida and so is ruled by state law.
"I think the judge's ruling is flawed," Syed said. "If you live in a country, you are subject to that country's laws."
Part of the problem is that the reporter had to summarize an arbitration dispute that is beyond messy. And the reporter did a good job of explain what an a'lim is, a Muslim scholar trained in Islam and Islamic law. In fact, while I think the story could have done a much better job of explaining the legal precedent -- or lack thereof -- of using Islamic ecclesiastical law to decide a case, it did do a good job of explaining the judge's perspective and the appellant's belief that the First Amendment means the court should be reticent to review, interpret or apply religious law.
It also seemed like the mosque is saying that while they agreed to binding arbitration, the arbitration standards they agreed to weren't followed properly -- just things like the arbitration took place without a representative from their side present. I was confused as to why, exactly, the case would need to "proceed under Ecclesiastical Islamic Law." So the story could use either more clarification or a bit more explanation from legal experts.
And while the matter at hand may come down to a debate about whether to use foreign law or the laws of Florida, I can't help but think that there are previous rulings that could help us put this ruling in context. Or maybe even a look at how judges in Florida have decided disputes over Christian property. Were there any litigated Episcopal/Anglican disputes down there? Any Jews with disputes about Jewish law? How did judges "proceed" in those cases?