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May 26, 2011
ACLU Turns Blind Eye to Sharia in America
By <http://www.americanthinker.com/stephen_m_gele/> Stephen M. Gelé
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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
<http://www.huffingtonpost.com/2011/05/20/anti-sharia-law-a-solutio_n_864389
.html> 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
<http://www.centerforsecuritypolicy.org/p18723.xml?genre_id=4> 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.
These two cases, as well as dozens of others cited in the Center's study,
including similar cases involving child custody and misogyny, demonstrate
that American courts have followed divergent paths on addressing sharia law.
Legislatures, as representatives of the people, should appropriately direct
the courts to avoid the enforcement of sharia law when such enforcement
violates American constitutional and public policy norms. Clearly, the
child custody cases in Maryland and Louisiana involved issues of gender
discrimination, denial of freedom of travel, disregard for the best
interests of a child, lack of procedural due process, and cruel and unusual
punishment. The ACLU, claiming to be the defender of American
constitutional rights, should be sensitive to the obvious breach of those
rights implicated in applying many aspects of sharia, and not ignorantly
stereotype all efforts to address such breaches as religious intolerance.
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.
Stephen M. Gelé is an attorney practicing in New Orleans, Louisiana. He has
litigated a wide variety of civil issues in Louisiana courts for the past
eighteen years. He testified on behalf of Lawyers Against Sharia before the
Louisiana Legislature in support of passage of the American and Louisiana
Laws for Louisiana Courts Act designed to impede the intrusion of sharia law
into the Louisiana legal system.
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