“Lawyers Against Sharia” attorney and
State Question 755
Vote “YES” on SQ 755 and forward this to everyone you know in Oklahoma!
The commentary below (highlights added) just came to us today. It is worth taking a few minutes to read and pass on to everyone you know in Oklahoma.
Oklahomans Vote On Sharia
This Tuesday, November 2, 2010, the voters of Oklahoma will have the opportunity to impede the infiltration of the Islamic law of sharia into their legal system. Oklahoma State Question Number 755 would add the following provision to the Oklahoma Constitution:
“The Courts ... when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated thereto, established common law, the Oklahoma Statutes and rules promulgated thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider … Sharia law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.”
Despite much criticism of the ballot measure as superfluous, the threat of sharia law being imposed in American jurisdictions is real. On many occasions litigants have demanded that American courts apply sharia. Further, American courts on occasion must decide whether to apply sharia, or recognize decisions rendered under sharia, when addressing: whether foreign judgments should be recognized; whether forum selection or choice of law clauses in contracts should be enforced; what jurisdiction’s law to apply to a particular case; and whether cases should be dismissed or transferred to be tried in other countries. American courts have, and likely will continue to, adjudicate the application of Islamic sharia.
Sharia law has previously attempted to invade Oklahoma. An Oklahoma Court of Appeal encountered sharia law in Asal v. Asal, 960 P.2d 849, 1998 OK CIV APP 54 (Okla.Civ.App. Div. 1 Feb 20, 1998) (NO. 88,400), certiorari denied (Apr 15, 1998). In Asal a wife sued to divorce her husband. Her husband, attempting to avoid payment of child support and marital debt, claimed that he had obtained a divorce in Egypt. An Egyptian divorce may have prevented the Oklahoma court from having jurisdiction, and the Egyptian court would have decided issues of custody, child support and marital debt under a variant of sharia, almost certainly producing a result more favorable to the husband than the wife. The failure of the husband to properly evidence the alleged Egyptian divorce spared the Oklahoma court from addressing whether the sharia-inspired foreign judgment should have been enforced by an Oklahoma court. However, other American courts have had to directly confront sharia.
The Louisiana Supreme Court refused to favor sharia in Amin v. Bakhaty, 01-1967 (La.10/16/01), 798 So.2d 75. 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 United States and visited her only once per year in a hotel room in Egypt. Her husband upon learning she traveled to the United States, 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.
However, a Maryland appellate court in Hosain v. Malik, 108 Md.App. 284, 671 A.2d 988 (Md.1996), enforced a Pakistani custody order, issued under a shariah rule granting sole custody to the father when the child reaches the age of seven, handing a little girl brought to America by the mother over to the father. The Maryland court bowed to the order by the Pakistani court even though the mother lacked representation during the Pakistani proceedings, because, although she may have been arrested for adultery if she returned to Pakistan for the custody 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 and the child's proper development is thought to be facilitated by adherence to Islamic teachings,” intentionally applied Islamic, rather than American, cultural and legal precepts.
These appellate decisions, and much anecdotal evidence, suggest that there are many more trial court proceedings in which Islamic litigants attempted to sway the court to apply Islamic, rather than American, law, sometimes successfully. As world travel and the Islamic population in the United States increase, the frequency of these demands for preferring Islamic over American legal mores will escalate.
The Oklahoma referendum prohibiting sharia law is not a futile, needless act of xenophobia, but rather a prudent prophylactic measure crafted to prevent Courts from applying misogynist precepts of Islamic law, inconsistent with the American legal tradition, in American courts.
|| 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 seventeen 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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