Sharia, or, American Laws for American Courts

American Public Policy Alliance Spokesman Stephen Gelé Responds
to CAIR-MI Attacks on American Laws for American Courts

Washington, DC, August 16th, 2011 - Stephen Gelé, spokesperson for the American Public Policy Alliance, issued the following statement in response to the mistaken protests in Michigan against HB 4769:

Rep. Dave Agema has been unfairly attacked by the Council on American Islamic Relations (CAIR), an organization that was identified as a Muslim Brotherhood front group and named an unindicted co-conspirator in the largest terrorism financing conviction in U.S. history. CAIR falsely characterizes Rep. Agema’s HB4769 American Laws for American Courts bill for Michigan as “unconstitutionally” targeting “Islamic principles.”

The American Laws for American Courts bill’s sole objective is to protect all U.S. citizens and residents from the application of foreign laws when the application of a foreign law will result in the violation, in the specific matter at issue, of a liberty guaranteed by the Constitution of the United States or the public policies of the state in question. Such violations would include infringements on due process, freedom of religion, speech, or press, equal protection, and any right of privacy or marriage as specifically defined by the constitution of the state.

Rep. Agema’s bill is constitutional, facially neutral and in the two years since its passage in three other state legislatures it has never been challenged in court.

Reviews of court records provide extensive evidence that foreign laws and legal doctrines have been introduced into U.S. state court cases, including, notably, Shariah law, which is applied in courts in dozens of foreign nations.

Unfortunately, because state legislatures have not been explicit about what the public policy is relative to application of foreign laws in state courts, the courts and the litigants have repeatedly failed to recognize that granting comity to a foreign judgment may be at odds with our state and federal constitutional principles in the specific matters at issue.

The American Laws for American Courts bill is carefully limited in scope, recognizing the need to balance individual liberties with other legal principles:

• The American Laws For American Courts bill does not apply to a business entity that contracts to subject itself to foreign law in a jurisdiction other than the state or the United States.

• The American Laws for American Courts bill does not interfere with the right of any individual to freely exercise his or her religion as guaranteed by the First Amendment to the U.S. Constitution.

• The American Laws for American Courts bill does not conflict with any federal treaty or international agreement to which the United States is a party.

The goal of HB 4769 is a clear and unequivocal application of what should be the goal of all state courts: No U.S. citizen or resident should be denied the liberties, rights, and privileges guaranteed in our constitutional republic.

American Laws for American Courts is needed especially to protect women and children, identified by international human rights organizations as the primary victims of discriminatory foreign laws.

Far from targeting those practicing the Islamic faith, the American Laws for American Courts legislation actually seeks to ensure that American Muslim families have the same constitutional protections and liberties as other Americans.

Opponents of the American Laws for American Courts bill exhibit indifference to American Muslim families who have already been denied equal protection and due process by American courts applying shariah law from the legal systems of foreign, oppressive regimes. Indeed, every concern raised by opponents at today’s press conference was irrelevant to the legislation.

The legislation, designed to protect American litigants from the application of foreign legal doctrines, recognizes that, for decades, through a misguided use of comity (a deference to foreign legal judgments), American courts have applied laws from nations such as Pakistan, Lebanon, Egypt and even Iran, often denying Americans their constitutional rights. These Americans, nearly all women, often came to America to escape the harsh and discriminatory doctrines of Shariah law, only to have those doctrines enforced in our state courts. A report entitled “Shariah Law and American State Courts,” addresses 50 sample cases (http://www.shariahinamericancourts.com) involving shariah law in American courts. Ten of those cases are briefly summarized below (see “Ten American Families and Shariah in American State Courts”).

Despite the completely unfounded accusation laid by CAIR, these cases enforcing shariah do not involve the exercise of religion, but issues of secular law commonly adjudicated in American courts, such as sexual assault, divorce, spousal support and child custody. Shariah rules governing issues of family law are regularly enforced by the authority of the state as a legal code in numerous foreign countries. Judgments from these courts have repeatedly reached American shores to be imposed upon Muslim families in our state courts.

Critics, such as CAIR, not only ignore the dozens of published legal cases involving the application of shariah law in American courts, but also misinform Americans regarding easily verifiable facts, such as the actual content of this protective legislation. Rather than acknowledging the relevant jurisprudence, and accurately describing the curative legislation, CAIR impugns their fellow Americans who seek to ensure constitutional equal protection, due process and civil liberties for all Americans, especially American Muslims who are denied their rights through courts imposing foreign laws contrary to our Constitution.

Below are ten cases (excerpted from “Shariah Law and American State Courts“).
In cases 1-3, the Appellate Courts upheld Shariah law; in cases 4-7, the Trial Courts upheld Shariah, but the Appellate Courts reversed (protecting the litigant’s Constitutional rights); in cases 8-10, both Trial and Appellate Courts rejected the attempts to enforce Shariah law.

Ten American Families and Shariah in American State Courts

Joohi Q. Hosain (FKA Malik) V. Anwar Malik, (http://shariahinamericancourts.com/?p=124 ), Shariah law of Pakistan, Maryland, 1996: Trial and Appellate Courts upheld foreign Shariah law and denied mother custody. She lost custody because going to custody hearing in Pakistan would have risked prison, torture or execution.
Laila Adeeb Sawaya Malak v. Abdul Latif Malak (http://shariahinamericancourts.com/?p=77 ), Shariah law of Lebanon/UAE, California, 1986: Appellate Court upheld foreign Shariah law and denied mother custody, reversing Trial Court.
Parveen Chaudry v. M. Hanif Chaudry, M.D., (http://shariahinamericancourts.com/?p=155 ), Shariah law of Pakistan, New Jersey, 1978: Appellate Court upheld foreign Shariah law, overturned Trial Court. Wife denied support and child support and division of property; prenuptial agreement signed by parents giving her only $1,500 from marriage upheld by Appellate Court.
In re the Custody Of R., minor child. Dato Paduka Noordin v. Datin Laila Abdulla, (http://shariahinamericancourts.com/?p=228 , Shariah law of Philippines, Washington, 1997: Trial Court upheld foreign Shariah law of Philippines (which has parallel Shariah court system) granting father custody; Appellate Court reverses, allowing mother to contest Philippines Shariah court custody decision.
S.D., Plaintiff-Appellant, v. M.J.R., (http://shariahinamericancourts.com/?p=197 ), Shariah law of Morocco, New Jersey, 2010: Pregnant mother is beaten and raped by her husband, Trial Court refuses restraining order citing foreign Shariah law, Appellate court reverses and grants restraining order.
Pamela Tazziz VS. Ismail Tazziz (http://shariahinamericancourts.com/?p=133 ), Shariah law of Israel, Massachusetts, 1988: Trial Court upheld foreign Shariah law of Israel (which has parallel Shariah court system ) requiring mother of four children to bring family to Shariah hearing; Appellate Court reversed.
Saida Banu Tarikonda, , v. Bade Saheb Pinjari (http://shariahinamericancourts.com/?p=139 ), Shariah law of India, Michigan, 2009: The Trial Court accepted a Talaq divorce (the husband says “I divorce you” three times, no prior notice to wife required). The Appellate Court reversed.
Irfan Aleem v. Farah Aleem (http://shariahinamericancourts.com/?p=126 ), Shariah law of Pakistan, Maryland, 2007: Trial Court rejected argument permitting a foreign Shariah law Talaq divorce to prevent community division of property; Appellate Court upheld.
Magda Sobhy Ahmed Amin v. Abdelrahman Sayed Bakhaty (http://shariahinamericancourts.com/?p=114 ), Shariah law of Egypt and Lebanon, Louisiana, 2001: Mother convicted under foreign Shariah law of Egypt for leaving Egypt with child for U.S. without husband’s permission; Under Egyptian Shariah law, father files for divorce and custody; Trial Court and Appellate court do not grant comity.
Bita Donboli, Respondent, and Nader Donboli (http://shariahinamericancourts.com/?p=236 ),Shariah law of Iran, Washington, 2005: Mother is dual citizen of U.S. and Iran, alleges beatings, not allowed to leave Iran with son without husband permission, and refuses to comply with foreign Iranian Shariah law custody decree. Trial and Appellate Courts uphold her position.

The study’s findings suggest that Shariah law has entered into state court decisions, in conflict with the Constitution and state public policy. Some commentators have said there are no more than one or two cases of Shariah law in U.S. state court cases; yet we found 50 significant cases just from the small sample of appellate published cases.

Others have asserted with certainty that state court judges will always reject any foreign law, including Shariah law, when it conflicts with the Constitution or state public policy; yet we found 15 Trial Court cases, and 12 Appellate Court cases, where Shariah was found to be applicable in these particular cases. The facts are the facts: some judges are making decisions deferring to Shariah law even when those decisions conflict with Constitutional protections.

Cf. http://shariahinamericancourts.com/ Shariah in American Courts