Republican convention delegates voted last week to adopt a platform plank, cautioning against the use of foreign law in U.S. courts. While jurists such as Supreme Court Justice Scalia have said that "foreign legal materials can never be relevant to an interpretation of the meaning of the U.S. Constitution," and Justice Thomas has written that the Court should not "impose foreign moods, fads, or fashions on Americans," other jurists have searched foreign legal sources to locate "evolving standards of decency that mark the progress of a maturing society."
This GOP platform provision, however, represents something beyond concern over the practice of buttressing sketchy legal reasoning with extra-American sources; the GOP statement also objects to Sharia law or any other foreign legal code that threatens to creep into judicial decisions disguised as validated ethnic customs. As suggested, this admonition would apply when claims in a legal dispute are based upon cultural codes with deficient individual and civil right protections compared to American constitutional standards.
The publicized New Jersey spousal abuse case first raised widespread alarm when a trial court judge refused to issue a restraining order against a husband despite the established record of domestic violence and assault (reversed on appeal). The judge ruled that the husband did not demonstrate sufficient legal criminal intent in light of an imam's testimony that wives are required to comply with husbands' sexual demands. The man's wife, known in the opinion as S.D., was 17 on the day of her wedding and did not know the bridegroom before the marriage ceremony in Morocco.
Another case that presented the Sharia terms of a foreign marriage in an American court is that of Joohi Hosain. When Joohi left her marriage (under strict Sharia rules, wives are not generally allowed to sue for divorce), her husband in Pakistan sued for custody of their daughter, Joohi fled to America on a student visa with her daughter, and eventually presented her custody case in U.S. courts after her by-then-ex-husband pursued her to Maryland. Although Joohi explained that making an appearance in a Pakistani court would likely result in accusations of adultery and the possible punishment of whipping or stoning, the Maryland appellate court determined that even so, the mother had the notice and opportunity to be heard and was thus afforded proper due process. The Maryland Court of Special Appeals then deferred to the Pakistani ruling that it was in the best interest of the child for the father to have primary custody.
About half of the cases involving Sharia family customs which have been presented for adjudication by American judges involve marriages solemnized in other countries, but many Islamic domestic marriages are also based on Sharia norms. These domestic unions present unique challenges: they often begin with disregard for the state law regarding the registration of officiants and the licensing of marriages. Even worse is the disregard for due process and informed contract formation when marriages and property distributions are arranged without the bride's participation.
After a review of both foreign and domestic Islamic marriages, I recently presented a survey to the Federalist Society that considered both published and unpublished family court cases that adjudicated Sharia terms. To date, about 25 U.S. family law cases reflect the U.S. approval of the Sharia-based marital terms in the family court or the court of appeal.
Consider the plight of two Muslim American women. First, Hamideh Saba Saadatnejadi, an American of Iranian descent, married in Tennessee after her father negotiated the Sharia version of a dowry. However, the imam was not registered with the state, and the required marriage license was not filed. The union did not last long, and her husband tried to extort Hamideh's interest in the Sharia prenuptial (part of which was agreed to by the husband to deter him from marrying up to three additional wives if he returned to Iran) by threatening not to file the marriage license unless she relinquished claim on her dowry. The family court ruled the marriage void as required procedures were not followed, but the appellate court reversed the decision and recognized the marriage based upon substantial compliance with Tennessee law.
Courts went the other way in New Jersey when Faranak Yaghoubinejad married her husband according to Sharia formalities but without complying with licensing laws. Again, when Faranak filed for divorce, her husband conveniently claimed that the marriage was not legal. The trial court this time upheld the marriage based upon the union having some elements of a marriage, but the appellate court reversed the decision, saying the "ceremonial marriage of purported spouses was absolutely void."
The American system of government based upon law, not clerical dictate, should provide predictable enforcement of the statutes passed by representative legislators. It is true that religious marital arrangements of many varieties are permissible in the United States, but if divorce issues land the parties in court, then state law, contract rules, and constitutional provisions should apply. Muslims who insist upon living according to a counter set of doctrinal codes should not expect the courts to respect an arrangement that ignores American civil requirements from the first elements of contract-creation and marriage-registration to divorce-notices and process-procedures.
Even leading sharia advocate and attorney Abed Awad admits that "many [Muslim husbands] intentionally marry without a marriage license purposefully to circumvent the applicability of New Jersey divorce and equitable-distribution laws." However, he argues for greater accommodation of Muslim deviations from civil requirements rather than for more conformity to state family laws.
Currently there is a curb against judicial rubber-stamping of customs which are in conflict with American standards. Judges are expected to apply a test designed to guide them in excluding case components that would be "injurious to the interests of the public, contravene some established interest of society, violate some public statute, is against good morals, tends to interfere with the public welfare or safety, or is at war with the interests of society or is in conflict with the morals of the time."
What is considered sound public policy, however, varies by state and some judges have rationalized around this test to accommodate -- erroneously -- Sharia traditions as religious custom.
Several states, most recently Kansas, have adopted initiatives based upon the model American Law for American Courts legislation. Like the One Law for All measures being debated in some European countries, this would reinforce important public policy declaratives by emphasizing the transcendence of constitutional mandates for due process and equal rights in all cases.
As political activist Muslim groups in America agitate for even more special considerations of Sharia practices, it is imperative that Americans define and defend foundational and inalienable natural rights. Any single initiative or statement will not address the political, sociological and legal scope of this challenge, but all are worthy of public debate and many should be practical parts of the solution that Americans must provide.