“I think it’s a solution in search of a problem,” said North Carolina State Representative Joe Hackney in response to that state’s proposed anti-Sharia law. Well, Hackney, here is your problem.
“Will Calls for Distribution ‘According to Islamic Laws and Sharia’; Pennsylvania Court Gives Twice as Much to Each Son as to Each Daughter,” by Eugene Volokh at The Volokh Conspiracy, April 29 (thanks to Ron):
That seems to be what happened in Alkhafaji v. TIAA-CREF Individual and Instit. Services LLC, 2010 WL 1435056 (Pa. Ct. Com. Pl. Jan. 14, 2010), which is now on appeal. I”m posting about this now because the briefs were just posted on Westlaw, and confirm the details of the will, as well as giving some extra perspective on the disputes related to what Sharia law provides in such situations.
Prof. Abbass Alkhafaji died, and left a will that apparently said, in relevant part,
(4) About my pension, the beneficiaries are all my biological kids and my current wife, … after reducing all costs associated with the house…. [The] rest of the pension, if any left, should be divided according to Islamic Laws and Sharia….
(9) In case I have additional monetary benefits from my job, such as life insurance, 401K, 403B or any other retirement funds that I am not aware of, Allah as my witness, They should be divided, after costs associated with the payment of those funds according to Islamic Laws and “Sharia.”
The trial court entered an order that concluded with, “(1) TIAA-CREF Individual and Institutional Services LLC, shall make distribution of the pension accounts of the TIAA-CREF certificates … to the decedent’s surviving spouse, … in accordance with decedent’s last will and testament dated July 17, 2007, and to his biological children, … in accordance of the law of Sharia, mainly [sic], one-eighth share to the surviving spouse, … and thereafter, the remaining balance to be divided, two shares each to the six male children, and one share each to the [two] female children.”
Now if Prof. Alkhafaji had specified in his will that he was leaving a 1/8 share to his wife, and then 1/8 to each of his sons and 1/16 to each of his daughters, that would be fine, regardless of whether his motivation was religious or secular. […] People are free to discriminate based on sex, religion, race, and so on in their wills, including in their gifts to their children.
But apparently the will had no such specific provision; rather, it called for distribution under religious law. This raises two questions:
(1) May a court interpret a will “” or a contract, deed, trust instrument, or what have you “” that calls for the application of religious law (whether Islamic law, Jewish law, canon law, or any other religious law)? Or does the Establishment Clause preclude courts from deciding what, say, Islamic law actually requires, at least if there’s a controversy between the parties about what the “true” interpretation of the religious law should be? […]
Here’s my tentative answer to question (1), based on an earlier post: I think courts must refuse to interpret religious terms of wills and other such documents, because of what I call the No Religious Decisions strand of Establishment Clause caselaw. Here’s a very brief summary of that strand: In a long line of cases (such as Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969)), the Supreme Court held that secular courts may not resolve religious questions, such as which rival church group most closely follows orthodox church teachings. Some states had rules, borrowed from English law, under which the more orthodox group would get to keep the church property, presumably on the theory that this would be more in keeping with what was intended by past donors to the church. But the Court held that such rules may not constitutionally be applied by civil courts…