Party like it’s 2010
The problem with getting into the anti-Sharia discussion is that it makes us feel like we were back in 2010. Those were the bad old days of the conspiracy theory that Muslims were plotting to overthrow everything with “Sha-ra-yah” which was somehow bad. While the result of this was that some more Republicans were elected (and a bunch of horrible policy things that hurt a lot of people came into existence), one thing that did not happen was that Muslims in the United States was that Muslims could still practice their religion. They can still do their Estate Plans consistent with the Islamic Rules of Inheritance if they want to.
What you might be told
Muslims usually don’t do anything about inheritance, even though it is fard. But its relatively common for Muslims to not do things that are fard (like prayer, Zakat, Hajj). A minority will often do many of these things. There are of course Muslims who live in the United States who think that it may well be an obligation, but it is not possible to do. Why? Because they were told something by someone years ago and it just stuck. Because they went to a lawyer, who advertises living trusts and tells people the only thing they can do is what is in their template. I remember one lawyer who talked to me when he set up a practice in a heavily Muslim neighborhood, that he would start to offer Islamic Inheritance. I checked in with him later; he said he decided to steer his Muslim clients away from the Islamic rules. He tried to explain the concepts were too hard, because in California (where we are) we have community property, etc. That’s fine. Lawyers can sometimes convince people of all sorts of nonsense by uttering irrelevant and meaningless jargon. Preferably in Latin, like lex situs and Res ipsa loquitur and what were we talking about again? Oh, yes, Sharia in Spain.
According to a report, in Spain, an agency in Madrid that administers property deeds for inheritance ruled that Article 12 of the Spanish Civil Code prohibits foreign laws that distribute inheritance unequally because they violate public policy. No anti-Sharia legislation in Spain caused this. It is a mainstream position that other laws don’t get enforced if it violates public policy. Say, for example, a man decided to write a will stating that after his death, he wants his successors to dig a massive hole right next door to a public children’s playground where trash will constantly be burned until the end of time. A court in virtually every state (I may have question marks on a few) will say this kind of wish violates public policy. They may have other legal reasons as well. Why is less inheritance for daughters, if that is the testamentary wish of a dead person, against public policy? Well, they are not saying that. Not exactly anyway, a point I will get to below.
Another thing that stands out in the Spanish case is that the daughters of the decedent accepted “without coercion” (because we have an orientalist frame to all of this) the “divine” (their word) mandate of Allah regarding inheritance. The women are being forced to own property and cannot give it away, because doing so is against public policy.
Wishes and Laws
A testamentary wish is not foreign law. Say a Muslim wants to be bathed after death and wrote that, or wanted to give less than 1/3 to charity in a Wasiyyah after death. Nobody will claim this is a foreign law that is within the bounds of foreign policy. What is happening here is that a person’s wishes are being interpreted as being compelled. Daughters had to assert they were not being coerced, the decedent was not given the opportunity to say this. An estate plan though is nothing more than a vessel for your values.
If you value sharia, you will implement it. If you value giving everything to the 14 cats in your basement, or a giant trash hole in the ground, you might do a plan to implement that. But why not say giving less to girls is against public policy? Why this nonsense about “foreign law”? Because non-Muslims use their testamentary freedom in all sorts of unequal ways all the time and for all kinds of reasons. Famously Warren Burger, the Chief Justice of the United States of America wrote a last will and testament that gave twice the share for his son than he did for his daughter. He followed Islamic law perfectly despite not being a Muslim.
This is not about protecting Women. If women, on their own accord, cannot give away their own property because of a religious obligation, is it really their property? This is, unfortunately about practicing a faith tradition. But then the question is, can this happen in the United States?
The US Constitution
It is true that in the United States we have the First Amendment, to the US Constitution, but it is also true that freedom to worship is in the Spanish Constitution as well. A lot of constitutions are fantastic, on paper. So don’t just let that be your guide. Decisions like the one in Madrid put religious freedom in that country in question.
In the US, the First Amendment, which as you might recall, guarantees free speech, press, assembly, petitioning grievances. Of course, it also provides for the freedom to exercise religion and preventing the government from establishing a particular religion. While none of these things are absolute and it’s not like Muslims in the US live in some sort of utopia. The First Amendment is powerful law.
Not worth anything unless you use it
Of course, law, or how it is interpreted, follows the social and political environment. I expect federal courts would be quick to invalidate any law that prevents Muslims from establishing their estate plans based on their values. If it was the case that some states went the Madrid route you can always do a living trust in any state with more of a commitment to religious freedom, I could not foreclose the possibility that things can get worse. But don’t ever let that stop you. Your freedom to worship, including inheritance, is meaningless to anyone that does not worship that way.
In the United States, you should feel comfortable exercising your freedom of religion.
If you want a resource guide on Islamic Inheritance, download it here. It’s free.