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.
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.
More Quotes About "Palestine"
"There is no such country as Palestine. 'Palestine' is a term the Zionists invented. There is no Palestine in the Bible. Our country was for centuries part of Syria. 'Palestine' is alien to us. It is the Zionists who introduced it".
- Auni Bey Abdul-Hadi, Syrian Arab leader to British Peel Commission, 1937 -
"There is no such thing as Palestine in history, absolutely not".
- Professor Philip Hitti, Arab historian, 1946 -
"It is common knowledge that Palestine is nothing but Southern Syria".
- Representant of Saudi Arabia at the United Nations, 1956 -
Concerning the Holy Land, the chairman of the Syrian Delegation at the Paris Peace Conference in February 1919 stated:
"The only Arab domination since the Conquest in 635 c.e. hardly lasted, as such, 22 years".
"There is not a solitary village throughout its whole extent (valley of Jezreel, Galilea); not for thirty miles in either direction... One may ride ten miles hereabouts and not see ten human beings. For the sort of solitude to make one dreary, come to Galilee... Nazareth is forlorn... Jericho lies a mouldering ruin... Bethlehem and Bethany, in their poverty and humiliation... untenanted by any living creature... A desolate country whose soil is rich enough, but is given over wholly to weeds... a silent, mournful expanse... a desolation... We never saw a human being on the whole route... Hardly a tree or shrub anywhere. Even the olive tree and the cactus, those fast friends of a worthless soil had almost deserted the country... Palestine sits in sackcloth and ashes... desolate and unlovely...".
- Mark Twain, "The Innocents Abroad", 1867 -
"In 1590 a 'simple English visitor' to Jerusalem wrote: 'Nothing there is to bescene but a little of the old walls, which is yet remayning and all the rest is grasse, mosse and weedes much like to a piece of rank or moist grounde'.".
- Gunner Edward Webbe, Palestine Exploration Fund,
Quarterly Statement, p. 86; de Haas, History, p. 338 -
"The land in Palestine is lacking in people to till its fertile soil".
- British archaeologist Thomas Shaw, mid-1700s -
"Palestine is a ruined and desolate land".
- Count Constantine François Volney, XVIII century French author and historian -
"The Arabs themselves cannot be considered but temporary residents. They pitched their tents in its grazing fields or built their places of refuge in its ruined cities. They created nothing in it. Since they were strangers to the land, they never became its masters. The desert wind that brought them hither could one day carry them away without their leaving behind them any sign of their passage through it".
- Comments by Christians concerning the Arabs in Palestine in the 1800s -
"Then we entered the hill district, and our path lay through the clattering bed of an ancient stream, whose brawling waters have rolled away into the past, along with the fierce and turbulent race who once inhabited these savage hills. There may have been cultivation here two thousand years ago. The mountains, or huge stony mounds environing this rough path, have level ridges all the way up to their summits; on these parallel ledges there is still some verdure and soil: when water flowed here, and the country was thronged with that extraordinary population, which, according to the Sacred Histories, was crowded into the region, these mountain steps may have been gardens and vineyards, such as we see now thriving along the hills of the Rhine. Now the district is quite deserted, and you ride among what seem to be so many petrified waterfalls. We saw no animals moving among the stony brakes; scarcely even a dozen little birds in the whole course of the ride".
- William Thackeray in "From Jaffa To Jerusalem", 1844 -
"The country is in a considerable degree empty of inhabitants and therefore its greatest need is of a body of population".
- James Finn, British Consul in 1857 -
"The area was underpopulated and remained economically stagnant until the arrival of the first Zionist pioneers in the 1880's, who came to rebuild the Jewish land. The country had remained "The Holy Land" in the religious and historic consciousness of mankind, which associated it with the Bible and the history of the Jewish people. Jewish development of the country also attracted large numbers of other immigrants - both Jewish and Arab. The road leading from Gaza to the north was only a summer track suitable for transport by camels and carts... Houses were all of mud. No windows were anywhere to be seen... The plows used were of wood... The yields were very poor... The sanitary conditions in the village [Yabna] were horrible... Schools did not exist... The rate of infant mortality was very high... The western part, toward the sea, was almost a desert... The villages in this area were few and thinly populated. Many ruins of villages were scattered over the area, as owing to the prevalence of malaria, many villages were deserted by their inhabitants".
- The report of the British Royal Commission, 1913 -