Judicial Jihad and the American Way

by Faisal Kutty

So far in 2014 alone, more than a dozen American states have pending bills to ban the use of “Sharī’ah”/foreign law in U.S. Courts.  They hope to join the seven that have already ostensibly banned the use of “Sharī’ah” (however imprecise that term is).

In striking down the first such legislation in Oklahoma in 2012, the appellate court noted that proponents did "not identify any actual problem the challenged amendment sought to solve.”  On the contrary as documented by the Center for American Progress, the Brennan Center at NYU, the American Civil Liberties Union (ACLU) and others, such laws are creating new problems by distorting pre-existing constitutional protections, undermining judicial independence and marginalizing Muslims. 

Historically Americans have benefited from the ability to use foreign law under choice of law rules when it served their interests.  Domestic courts have obliged, provided that it was not contrary to public policy in both the personal and business realms.  Many of these legislative initiatives will alter the status quo in unexpected ways.  To address this inevitability some of the bills – North Carolina and Florida, for instance – expressly restricted the ban to the family law context. Nevertheless, in Missouri adoption advocates had to lobby against such a bill because of its anticipated impact on international adoptions.  Instead of abandoning the bill, legislators amended it to exclude adoptions.

Even in the context of private family disputes, the results may be counterintuitive. In August 2012, for instance, just one month after Kansas passed Senate Bill 79, a state court found its hands tied when Elham Soleimani sought the enforcement of the mahr  provision in her Islamic marriage contract.  The husband, Faramarz Soleimani, had agreed to pay 1,354 gold coins — valued at $677,000 at the time — in the event of divorce.  Faramarz agreed to this at the outset, given that it was his second marriage and Elham was 24 years his junior. Elham’s claim failed, thanks to the law which State Senator Susan Wagle introduced as “a vote to protect women.”   Elham would beg to disagree.

Clearly these only reveal just the tip of the iceberg in terms of legal uncertainties.

Unnecessary Legislation

Religion and law ignite unique tensions in secular democracies. The U.S. is no different. Indeed, the American Constitution First Amendment protection of religious freedom (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”)    is one of the most celebrated aspects of the American liberal tradition.  Consistent with this, for the most part, courts have taken a hands off approach.

A review of case law reveals that people of all faiths have used their right to seek relief through the courts when they believe their religious freedom is restricted. Indeed, as the ACLU report  concluded: “When adjudicated within the guidelines of the First Amendment, cases involving Muslims’ right to free exercise no more threaten the imposition of Sharia law than, for example, cases involving the rights of Christians pose a ‘Biblical threat’ to our courts.”   

In addition to religious liberty cases, in a growing number of cases, the courts as ultimate arbiters of law are called upon to resolve tensions and determine rights and responsibilities pursuant to certain religious arrangements and settlements.  Addressing these issues demands a consideration not only of how to weigh the competing interests, but also of the extent to which secular authorities should assess religious obligations.  American courts have traditionally recognized their ability to consider such cases provided they are able to adjudicate them using neutral principles of law.  These types of cases also engage the notion of freedom of contract, the principle of comity, and public policy.  Though not necessarily distinct or mutually exclusive at all times, each of these have a long track record in the American legal tradition and, have served the nation well.

Let’s take the example of alternative dispute resolution (ADR). The various types of ADR (including mediation and arbitration) are options that any American can resort to.  Parties have a great deal of freedom in its design.  For instance, parties have full rights to choose the rules that will govern the resolution —be it religious, secular, domestic or foreign (subject to choice of law and conflict of law rules) – as well as the terms of reference.  The fear mongering with respect to Islamic principles fueled by anti- Sharī’ah advocates is clearly hypocritical and discriminatory when we consider that other communities have been using these alternatives without any outrage or objection.  A blanket prohibition would be clearly against long-established American ideals of freedom of contract, contract law principles, and encouraging people to resolve disputes outside the courts while reserving access to the courts to uphold such agreements, provided there are within established and accepted parameters.

Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy.

In the context of family disputes, for instance, courts in multiple states have upheld, varied and denied foreign divorces, property settlements and custody orders based on public policy and the best interest of the child on a case-by-case basis.  The Louisiana Supreme Court, for instance, rejected the use Egyptian law in a child custody case on grounds of public policy. 

On the other hand courts have extended comity to decisions from other Muslim jurisdiction when there are no public policy objections or other legal deficiencies.  For instance, in another child custody case, the court found no reason to refuse the enforcement of a Pakistani court’s child custody order since there was no public policy violation. While other Pakistani court decisions were not enforced because it would be contrary to public policy.

Effective governance in contemporary liberal societies requires balancing individuals’ religious commitments and convictions with the state’s need to maintain general rules and standards.  Before and since the ban proposals, courts have taken different positions on law and religion questions and proposed different solutions based on long established and entrenched legal principles and practices.

This ground reality of case-by-case decision-making contradicts the “creeping Sharī’ah” view.  Indeed, as Matthew Franck, a noted legal analyst at the Conservative National Review, after reviewing the cases relied on by anti-Shariah advocates to claim that American legal culture was being transformed, concluded:

Thirty-five years’ worth of American law, and we have a whopping seven cases in which some “foreign law” was honored (not even Sharia in every case), and not enough information even to tell if something truly unjust happened in any of the seven.  In the other thirteen cases, Sharia-law principles were rejected either at trial or on appeal.

Islamophobia

Earlier this year South Carolina State Senator Lee Bright (R) introduced House Bill 4494 which specifically targets Islam. “We got to be careful about who we let into this country,” Senator Bright told a crowd last summer. “A lot of these folks from terrorist nations are coming in on student visas, and we shouldn’t allow it.”  Such are the views of many anti- Sharī’ah advocates.

The ban movement, according to the New York Times, is the brainchild of an Islamophobic lawyer, David Yerushalmi, who has been described by the Jewish Anti-Defamation League, as having a record of “anti-Muslim, anti-immigrant and anti-black bigotry.”  As the Times documents, after the Oklahoma “Save our State” measure was struck down as unconstitutional for singling out Islam, Yerushalmi turned his mind to draft a model statute  known as “American Laws for American Courts,” for  the American Public Policy Alliance.  With the help of its Islamophobic allies, the Alliance has managed to have more than 70 pieces of legislation adopt the language to date. 

The model law is silent on Islam but as pointed out by Daniel Mach and Jamil Dakwar of the ACLU, their intent “is unmistakable.”  They write:

"these efforts are rooted in\ the baseless idea that U.S. Muslims wish to impose Islamic law on Americans. Proponents of these misguided measures, which have been introduced in 25 states so far, clearly seek to ride the recent wave of anti-Muslim bias in this country.”

The popular war cry of anti- Sharī’ah advocates in some western jurisdictions has been “one law for all.” In the American context, this has morphed into “American Law for American Courts.”  These rallying cries are, at worst, disingenuous and, at best, inaccurate because the American legal landscape permit parties a variety of routes and options in resolving their disputes and, in many cases, even allow parties to opt out of existing statutory regimes.  These simplistic slogans deny the reality on the ground in terms of the prevailing legal pluralism and the choices available to all people.

The evolutionary nature of Islamic law and the pluralistic nature of American society provide an opportunity to acknowledge and accept this reality, and to devise a practical model of legal pluralism that can facilitate a harmonious relationship between religious laws and various state and federal laws and systems.

As outrageous as it may appear to anti-Sharī’ah advocates, if constitutional rights to religious freedom, equal treatment, and freedom of contract are to have any real value, religious communities, including Muslims, must be guaranteed access to justice both within and outside of the court system.  It would be un-American to insist that Muslims must always couch their claims in non-religious terms to obtain justice while others need not do so.

The judicial jihad (struggle) has merely reinforced American Constitutional and legal principles and promoted the American way. Muslims merely have had access to the dockets to advocate for their rights, nothing more.

— Faisal Kutty