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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 dozens of American court cases involving sharia law.  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.  Yet, despite the numerous cases cited in the study, several commentators have chosen to selectively criticize the study, rather than recognize the challenges presented to the American justice system by litigants advocating for the application of sharia as detailed in the study.

Ed Brayton, a contributor at scienceblog.com, recently accused the Center’s study of being “fraudulent” because in some of the fifty cases cited in the study the courts did not ultimately apply or enforce sharia law.  After describing a handful of such cases he argued that the study proved that sharia was not a threat.

He reaches this conclusion by completely ignoring the many cited cases wherein sharia was applied, and completely discounting important trial court decisions applying sharia that were later reversed.  The first decision he describes is the Michigan case Tariconda v. Pinjari in which the trial court enforced, through the judicial doctrine of comity, a talaq divorce decree from India.  Under sharia a talaq divorce may be committed by the husband by just pronouncing three times that he divorces the wife.  Although the appellate court later reversed the trial court, holding that the Indian divorce decree should not be granted comity because the instant divorce did not involve “the basic rudiments of due process” and sharia principles of division of property discriminated against wives, the trial judge nonetheless had held the talaq divorce enforceable in Michigan causing the wife to incur the expense and uncertainty of appeal.

Brayton also cites the Arizona case Nationwide Resources Corporation v. Massabni, addressed by the study, in which the appellate court found that different laws apply to Christians than Muslims in Syria, and as the parties were Christian, the appellate court did not apply sharia.  However, the appellate court found that litigant Nationwide did contend that sharia applied, and the trial court had applied sharia.  Thus, the litigant had argued for the application of sharia, and the trial court had acceded.  Brayton additionally cites the California case Karson v. Soleimani, in which the trial court dismissed a case, under the doctrine of forum non conveniens, holding that the nation of Iran was a more appropriate forum, although the appellate court reversed finding that “Iran may well lack an independent judiciary that adheres to principles of due process.”

Robert Steinback of The Southern Poverty Law Center has recycled the contentions of Brayton in a recent post, and admits to being satisfied that numerous, admittedly “erroneous,” trial court decisions have been reversed on appeal.

Brayton and Steinbeck ignore that in these cases, as in many more cited by the study, litigants contended that sharia applied, and trial courts actually applied sharia.  Brayton and Steinbeck do not even propose that litigants will stop demanding the application of sharia, or that trial courts will stop succumbing.  Instead, they appear to be satisfied that justice is served primarily because appellate courts will sometimes reverse unjust trial court decisions.

Justice should be granted at both the trial and appellate levels.  Although later appellate reversals are encouraging, women, children and non-Muslims should not have to bear repeated unfavorable rulings at the trial court level, and incur the expense, uncertainty and delay of appeal, especially as the women caught in these disputes typically lack the resources of the men who are seizing their children or denying them support upon divorce.  According to experts, an appeal in divorce or child custody cases can cost a parent between $10,000 and $50,000.  American law should be clear and unambiguous- foreign judgments and doctrines, including those premised on sharia, should be not be applied or enforced when inconsistent with American constitutional norms and public policy.

Further, Brayton completely ignores, and Steinback flatly denies the existence of, several cases (12 out of 50)  in which appellate courts applied or enforced sharia law.  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 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 might 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 appellate court 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 appellate 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.

Hosain is certainly not the only case in which an American appellate court applied sharia.  A California appellate court, in In re Marriage of Malak, enforced a Lebanese custody decree granting custody to the husband, even though the trial court had found that the wife had been denied due process in Lebanon, and the Lebanese Islamic court did not base its ruling upon the best interests of the child.  A New Jersey appellate court, in Chaudry v. Chaudry, enforced a Pakistani divorce decree, even though the trial court found that the decree should not be granted comity because of the denial of alimony per a marriage contract negotiated by her parents.

Further, an Iowa appellate court, in In re Makhlouf, enforced a Jordanian Sharia Court of Appeals custody order awarding a daughter to her father solely because the mother had remarried.  Steinback does mention this case in his post, but, like the Iowa court, harshly judges the mother’s conduct in keeping her daughter from her father, but, also like the Iowa court, has nary a word to say about the obviously gender-biased and unjust Jordanian ruling the Iowa court enforced, shipping the girl off to Jordan with her estranged father.

Even if not every litigant who demands the application of sharia at the trial court level is successful, and every application of sharia at the trial court level is not upheld on appeal, the repeated demands by litigants for application of sharia, the many cases applying sharia at the trial court level, and the cases applying sharia at the appellate level, all argue for addressing the issue of sharia in American courts.  Quantification of the rate of success of demands for sharia is almost impossible to determine because some appellate opinions, and almost all trial court judgments, are not widely published.  Many, if not most, trial court decisions applying sharia might never be appealed.  However, even if the majority of demands for sharia are denied, women and children should not be forced to play legal Russian roulette.  Every effort should be made to inhibit American courts from applying legal doctrines, including sharia, inconsistent with American constitutional rights and public policy.

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.