Op-Ed from the Office of State Senator Craig Estes, District 30

For Immediate Release
September 15, 2011
Contact: Sam Carlson

And Justice For All

by Senator Craig Estes, SD-30

A newly-wed couple from Morocco moved to New Jersey in August of 2008. The couple did not know each other; their marriage had been arranged by their families. Their life in this country was uneventful until November of that year, when the husband discovered that his wife, who was all of seventeen years old, did not know how to cook.

Outraged by her ignorance, he decided that she needed to be punished. Over the next three months, he repeatedly assaulted her, covering her body in bruises. He pulled out her hair. He beat her about the face until she was rushed to the hospital, covered in blood. And he regularly raped her while she cried and begged him to stop. "This is according to our religion. You are my wife, I can do anything to you. The woman, she should submit and do anything I ask her to do," he responded.

The Superior Court of New Jersey agreed. And it refused to issue a restraining order.

Yes, you read that right. The young couple's religion was Islam, and under some (more radical) interpretations of its body of law, known as Sharia, the husband was correct. The New Jersey court found that, while he had assaulted and raped his wife, his conduct was not criminal. In other words, the Superior Court decided that the law of the land does not apply to you if you consider yourself to be part of another culture. It decided that you can do whatever you want, so long as you believe you're right.

Fortunately, the Superior Court did not have the last word. The New Jersey Appellate Division reversed the decision. However, the case increased public examination of other cases involving Sharia law, which led to the discovery that courts in the United States, including courts in Texas, had been indirectly enforcing Sharia law for some time through arbitration agreements.

Over the past forty years, reformers have been pushing alternative dispute resolution, particularly arbitration, as the best way to reduce the length and cost of litigation. The result has been a series of laws that virtually prohibit courts from interfering with arbitration. But when people enter into an arbitration agreement, they are free to choose the "law" that will be used to settle any disputes that might arise out of the agreement. While this "law" could be the law of Texas, it does not have to be. People are free to arbitrate their disputes according to the law of another state or according to any other set of principles, including the law of a religion. The only real safeguard on how far this can go is that arbitrators cannot award remedies that would be unenforceable in a contract. In other words, an arbitrator can award money, property, or custody of a child. But an arbitrator cannot order a beating, a stoning, or a beheading.

I believe that in a free country where individuals possess the freedom to contract with one another, it is one's right to sign an agreement to arbitrate a dispute according to any set of principles one wishes, including Sharia law. The key is that the choice must be freely made. Unfortunately, two months ago, Texas law encouraged the opposite.

The U.S. Supreme Court decided in Prima Paint v. Flood & Conklin Manufacturing that when a contract contained an arbitration agreement, the validity of the contract had to be determined by the arbitrator. This reversed normal principles of contract law, which usually require a contract's validity to be established before its contents are enforced. The Texas Supreme Court adopted this doctrine in Forest Oil v. McAllen. The result was that, in a case where a husband threatened to behead his wife if she did not agree to arbitrate their custody dispute according to Sharia law, her defense of duress had to be raised in the Sharia court.

Though this exact scenario had not yet occurred in Texas, I was alarmed by the possibility of such a miscarriage of justice. To prevent it, I worked to pass Senate Bill 1216, which allows parties to a family law contract containing an arbitration agreement to challenge the validity of the agreement in court, without having to go before an arbitrator who might be biased. Governor Perry signed it into law on June 17, 2011.

Freedom of contract and freedom of religion are crucial rights that I strongly believe in. But, if ours is to remain a free society we cannot allow Sharia courts or sects like Warren Jeffs' to use arbitration agreements to avoid due process of law. Upholding constitutional due process and the rule of law is not a difficult choice. Senate Bill 1216 will help ensure that our courts have the necessary tools to provide justice for all.