by Stephen M. Gelé
Daniel Mach, director of the American Civil Liberties Union’s program on Freedom of Religion and Belief, and Jamil Dakwar, director of the ACLU’s Human Rights program, recently co-authored an article on the Huffington Post attacking legislative efforts to prohibit the application of foreign laws inconsistent with the rights granted by the U.S. and state constitutions or state public policy.
The article posits a series of disjointed, hypothetical misapplications of the legislative efforts to prevent sharia from encroaching into our legal system. Yet, the authors cite no actual examples of misapplications of laws already passed and in force, in Tennessee, Louisiana, and Arizona. The authors fail to distinguish this American Laws for American Courts (ALAC) legislation from other legislative efforts, such as the Oklahoma constitutional amendment, which do not explicitly reference the protection of constitutional rights and public policy in prohibiting application of sharia or foreign law.
Further, the authors contend that these laws, explicitly protecting established constitutional rights, are superfluous because the First Amendment already protects these rights, and then allege that these laws violate the religious freedom granted by the First Amendment. The authors thereby dangerously conflate the judiciary’s interpretation and enforcement of secular law with interpretation and enforcement of religious doctrine. The freedom of religion and establishment clauses of the First Amendment do not address the application of foreign law, including sharia, in American courts, and, as demonstrated below, have not been applied to prevent such application.
Additionally, American courts have repeatedly held that freedom of religion does not require the judiciary to void secular laws which may incidentally conflict with religious doctrine, and that the First Amendment prohibits the judiciary from interpreting or enforcing religious doctrine. For example, in the case of S.D. v. M.J.R., the New Jersey Superior Court of Appeal reversed a trial court judge who did not find sexual assault to have been proven when a husband admitted forcing his wife to engage in sex, because the husband lacked criminal intent as he was a Muslim, and sharia, as described by an imam, mandated that a wife submit to her husband’s sexual advances. The New Jersey appellate court cited several U.S. Supreme Court decisions that held that freedom of religion does not include violating criminal laws, including Reynolds v. United States and Cleveland v. United States regarding polygamy, and Employment Div., Dep’t of Human Res. of Oregon v. Smith regarding smoking peyote, even when religious doctrine permits or mandates the prohibited practice. The U.S. Supreme Court, in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church and its progeny, have also consistently held that deciding disputes over religious doctrine violates the establishment clause of the First Amendment.
Most egregiously, the title of the article, “Anti-Sharia Law: A Solution In Search Of A Problem,” suggests that the enforcement of sharia law in the United States is simply not a problem worth addressing. The authors completely ignore dozens of published state appellate decisions in which American courts addressed litigants who demanded the enforcement of sharia, and on many occasions succeeded.
A recent study entitled “Shariah Law and American State Courts: An Assessment of State Appellate Court Cases,” released by The Center for Security Policy, identifies 50 such appellate court cases from 23 states. Many of these cases involve blatant violations of constitutional rights, usually to the detriment of women and children, including the enforcement of foreign custody orders to wrest children from their mothers.
For example, a Maryland appellate court in Hosain v. Malik enforced a Pakistani custody order, issued under a sharia rule granting sole custody to the father when the child reaches age seven, handing a little girl brought to America by her mother over to the father. The Maryland court bowed to the Pakistani court order even though the mother did not appear for the Pakistani proceedings, because, although she may have been arrested for adultery if she returned to Pakistan for the hearing, and been subject to “public whipping or death by stoning,” the court found such punishments were “extremely unlikely.” The judges explicitly proclaimed that the best interest of the child should not be “determined based on Maryland law, i.e., American cultures and mores,” but rather “by applying relevant Pakistani customs, culture and mores.” The court, explaining that “in the Pakistani culture, the well being of the child … is thought to be facilitated by adherence to Islamic teachings,” intentionally applied Islamic, rather than American, cultural and legal precepts.
In contrast, the Louisiana Supreme Court refused to favor sharia in Amin v. Bakhaty. In Amin an Egyptian wife and mother committed the Egyptian crime of leaving Egypt without her husband’s permission. She traveled to Louisiana with her child in an attempt to improve her relationship with her husband who lived in the U.S. and visited her only once per year in a hotel room in Egypt. Her husband, upon learning she traveled to the U.S., traveled to Egypt, had her convicted of the crime, filed for divorce and custody under Egyptian law, and then traveled to Louisiana to seize their child under the Egyptian custody decree. Louisiana’s highest court explicitly rejected the demand to enforce Egyptian child custody law because “Islamic family law … structures some of the rights between family members based solely on gender” and not “the minor child’s best interest.” The Louisiana Court explained that under Louisiana law “a parent’s interest in a relationship with his or her child is a basic human right.” However under the sharia-based law of Egypt “it is most likely that [the mother] will be deprived of a relationship with [the child] if she is forced to return to Egypt to pursue custody or visitation rights.” Thus, the Louisiana Court rejected the sharia-induced award of sole custody to the father.
Legislative efforts, such as the passage in Tennessee, Louisiana, and Arizona of the ALAC legislation, drafted by the American Public Policy Alliance, should be applauded, and similar efforts in other states encouraged by all Americans who support upholding American constitutional rights, including, ostensibly, even the ACLU.