By Stephen Gele
On June 10, 2012, columnist Steve Chapman penned a TownHall.com column entitled The Bogus Threat from Shariah Law. See http://townhall.com/columnists/stevechapman/2012/06/10/the_bogus_threat_from_shariah_law
In the column Chapman compares concerns over Shariah law to suspicions about Catholicism in the 1800s, an invalid comparison since Catholic canon law did not portend to govern non-ecclesiastical matters, whereas sharia governs non-ecclesiastical matters, including criminal and domestic law, and has been adopted by several nations in different fashions.
Chapman then mischaracterizes laws passed in Kansas, Tennessee, Louisiana and Arizona to protect the individual constitutional rights of Americans against foreign laws and foreign legal doctrines. Chapman incorrectly equates the laws passed in Kansas, Louisiana, Tennessee and Arizona to the constitutional amendment passed in Oklahoma, regarding which a federal court has enjoined enforcement. The Oklahoma law, however, could be read as blanket ban on foreign law, and specifically and explicitly sharia, whereas the laws overwhelmingly approved by bipartisan majorities of the Kansas, Tennessee, Louisiana and Arizona legislatures do not ban all applications of foreign law, and do not even mention sharia.
The laws passed in Kansas, Louisiana, Tennessee and Arizona are all closely modeled on “American Laws for American Courts” legislation promoted by the American Public Policy Alliance (APPA)
Unlike the Oklahoma constitutional amendment, this legislation has never been challenged in court since first being signed into law more than two years ago.
Chapman further mischaracterized American Laws for American Courts as forbidding “courts from applying Islamic Shariah law in any case,” which is simply not accurate. Chapman also states that American Laws for American Courts “prohibits state courts from basing decisions on any foreign laws or other legal codes,” which is also inaccurate. The legislation only forbids the application of foreign laws or judgments when their application or enforcement would violate fundamental American constitutional rights.
It is true that American Laws for American Courts was crafted to protect Americans’ constitutional rights against the infiltration and incursion of foreign laws and foreign legal doctrines. But it is not a blanket ban on any foreign law or foreign legal doctrine, including sharia.
The plain language of American Laws for American Courts protects Americans from the application of foreign laws when the application of a foreign law would result in the violation of a fundamental right guaranteed by the constitution of the state or of the United States, including but not limited to due process, freedom of religion, speech, or press.
Despite admitting that there is no mention of Shariah in the legislation, Chapman contends that the legislation will somehow restrict the free exercise of religion, which the legislation clearly does not.
Although Chapman creates the false impression that the legislation will affect the exercise of religion, he derides the legitimate concern that foreign law, including sharia, inconsistent with American constitutional norms, has intruded upon the American judicial system.
Last year, the Center for Security Policy conducted a preliminary survey of state court cases in which one or both parties to a dispute attempted to invoke sharia law. The Center published the results in a study entitled Shariah Law and American State Courts, which can be downloaded in its entirety for free at http://shariahinamericancourts.com/.
The study details dozens of cases in which parties invoked sharia, including several cases in which sharia was actually applied. Importantly, frequently sharia manifested itself not explicitly as sharia, but as the law of a particular nation, such as Pakistan, Saudi Arabia, Egypt or another jurisdiction whose law is based on sharia.
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 might 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. http://shariahinamericancourts.com/?p=124
Finally, Chapman claims that no one has been able to find a case in a Kansas court in which sharia has been invoked. However, as known to the Kansas legislators, and reported by the Kansas press, a divorce case pends before a Kansas court involving a husband who seeks deny his wife marital property based on a Lebanese marital contract consistent with sharia law.
It is unfortunate that Chapman did not contact the bill sponsor, Kansas Rep. Peggy Mast, who painstakingly researched these issues for two years to get her bill passed by overwhelming, bipartisan margins in the Kansas legislature. As Rep. Mast knows, American Laws for American Courts legislation is needed because courts generally lack statutory guidance in enforcing foreign judgments or applying foreign laws in American courts. It is the proper role of the legislative branch to set public policy in to guide courts in such cases, which is what American Laws for American Courts has accomplished in Kansas, Tennessee, Louisiana and Arizona.