When Hussein Hamdeh, a physics professor at Wichita State University, got married in Lebanon in 2003, he agreed under Islamic law to pay his wife $5,000 in the event the couple divorced. Nine years later, his wife, Hala Hamdeh, is arguing in divorce filings in Kansas state court that limiting her to that agreement would deprive her of community property.
The case is a hot topic in Kansas, where Governor Sam Brownback signed into law on May 21 a ban on the application of foreign law in the state’s courts. Kansas was the fifth state to enact such a ban. Muslim groups, including the Council on American-Islamic Relations (CAIR), argue the bans, most of which use the general terms “foreign” or “international” law, are veiled affronts to their religious beliefs — in particular, to Islamic law, referred to as Sharia. The legislation, they note, has accompanied a rise in animus toward Muslims since the attacks of Sept. 11, 2001.
“There’s a fairly well-financed movement to get these laws enacted around the country,” said Glenn Hendrix, chairman of the American Bar Association’s task force on the application of foreign law in state courts, which issued a report on Sharia bans last year. “And I don’t think there’s any question there will be more of these introduced in other states.”
Sharia is the Islamic moral code derived from the Quran, the sayings and conduct of the prophet Muhammad and rulings by Islamic scholars. It often is applied in family disputes and probate. According to proponents of the bans, Sharia law increasingly has been enforced by state courts in the United States.
Naturally, the fight over the bans themselves are ending up before the courts. On January 10, the U.S. Court of Appeals for the Tenth Circuit affirmed a preliminary injunction against an Oklahoma ballot initiative that would have banned Sharia from that state’s courts. In Minnesota and New Jersey, proposed bans on the application of foreign or international law in state courts withered after CAIR threatened to sue, said Gadeir Abbas, a staff attorney at the organization. “The explanation was, ‘We didn’t know they had discriminatory intent,’ ” he said.
Abbas predicted more fights to come. “The Muslim community has mobilized on this issue,” he said.
FORTY BILLS PROPOSED
During the past two years, approximately 40 bills have been introduced nationwide that would bar state courts from enforcing foreign laws — including, although this is not necessarily spelled out, Sharia. Arizona, Louisiana and Tennessee have enacted such bans. In South Dakota, Governor Dennis Daugaard signed legislation on March 19 prohibiting that state’s courts from enforcing “any provisions of any religious code.”
That bill incited concerns about Sharia law but actually was inspired by a South Dakota Supreme Court ruling in a case involving the Anabaptist community known as the Hutterites, sponsors said. The high court concluded that it lacked jurisdiction to address an internal dispute within the religious group.
“I’m not real sure that there was a great impact statewide, but because this was an issue involving religious beliefs that the Supreme Court ruled on, we decided to make it statutory law so that it would be well known to everybody in the state, as opposed to hidden in a piece of Supreme Court opinion,” said state Representative Roger Hunt, author of the bill. He is an attorney at Hunt Law Offices in Brandon, S.D.
Abbas insisted the target obviously was Sharia. “It’s crystal clear that the law was targeting a growing immigrant Muslim community in Sioux Falls,” he said.
The Kansas law is more specific. It prohibits the courts from applying any foreign law that does not grant a party the “same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions.” State Representative Peggy Mast, who sponsored the bill, cited an increasing number of court rulings addressing Sharia law, including the still-pending Hamdeh divorce.
“What we’re seeing is that, when you come to our court system as a citizen of the United States, you deserve equal protection under our court system, whether you’re from another country or not,” she said. “This is where the conflict arises. And it’s mostly in domestic cases.”
Like similar initiatives, the Kansas law follows model legislation designed by the advocacy group American Public Policy Alliance, which bills itself as “dedicated to protecting U.S. constitutional rights, safeguarding U.S. sovereignty and promoting government transparency and accountability.” Spokesman Stephen Gelé denied bias was at play. “There’s no intention by anyone to stop Muslims from practicing a religion,” he said. “The bill on its face clearly does not mention Sharia or Islam.”
In fact, he said, the people who most benefit from the legislation are Muslim women in custody disputes.
The alliance and the Center for Security Policy in Washington have teamed up to identify cases in which Sharia is being applied. Last year, the center issued a lengthy report highlighting 50 appellate rulings regarding Sharia, many involving women in domestic disputes.
The most cited example involved a New Jersey woman who attempted to obtain a restraining order against her estranged husband after accusing him of raping her. “An imam testified [that] a wife is duty-bound to have sex with her husband whether she wants to or not,” said Gelé, senior attorney at Smith & Fawer in New Orleans. “The judge held that because of that, he did not have the intent to commit the crime…and did not issue the injunction or restraining order.” The ruling did not survive an appeal.
CAIR actively fought the legislation in Kansas, Abbas said. He stopped short of saying whether his organization intended to sue. “The way we describe it is, this bill is unconstitutional, and unconstitutional bills invite legal challenges,” he said.
So far, only one legal challenge has emerged to the proposed bans. Muneer Awad, executive director of CAIR’s Oklahoma chapter, filed suit to block enforcement of that state’s ballot initiative, which won support of more than 70 percent of the voters. He argued that the initiative violated his rights under the establishment and free-exercise clauses of the First Amendment. Enforcing it, he added, would stigmatize and interfere with his right to practice his faith.
Micheal Salem, an attorney representing Awad, said that supporters have adjusted to the Tenth Circuit’s ruling by dropping any direct reference to Sharia, instead targeting foreign or international law. Even the model legislation excludes the term “Sharia.”
“They want to say Sharia, they really do, but now they know that they can’t because the Tenth Circuit has basically said [that] you run afoul of the establishment clause by making the law detrimental to a religious minority in the United States,” Salem said.
That hasn’t quelled the debate over Sharia. “What is disturbing is not just the practical impact, but the symbolic impact of having a lot of legislatures stand up and say, ‘You need to ban this particular religion’s religious law, and if we could say Sharia we would, but constitutionally we need to call it foreign law. But make no mistake — this is what we’re after,’ ” said Hendrix, a partner at Atlanta’s Arnall Golden Gregory. “It’s the stigmatizing of one particular religious group that’s disturbing.”
Gelé countered that his group supports long-standing rules of comity allowing foreign judgments to be enforced against U.S. citizens, as long as they received the same protections as they would have enjoyed within the United States. Otherwise, “we’re concerned in general with the application of foreign law in the United States,” he said.
Muslim groups aren’t the only ones protesting the proposed bans. Jewish groups have raised concern for the enforceability of edicts by rabbinical courts called “beit din.” “We don’t believe that [the model legislation] will prevent that unless — and this has not been demonstrated — someone could demonstrate why beit din wasn’t given the same constitutional rights the American court would,” Gelé said. “We can tell there’s no conflict there.”
Some of the strongest opposition comes from business groups fearful about their ability to enforce international contracts. In Virginia, for example, local business groups helped kill proposed legislation.
“They are, far and away, the greatest practitioners of international law in the United States,” Abbas said of the business community. “So laws that generally prohibit the application of international law will pose significant problems for businesses that operate internationally — which, these days, is almost all.”
Acknowledging that conflict, the model legislation provides an exception for corporations, Gelé said. Such an exception was included in the Kansas bill.
“It explicitly allows foreign companies to enter into contracts where they’ve designated a foreign law as the force of law for that contract,” Gelé said. “It doesn’t allow the gentleman in the Kansas case to force Lebanese law to deny his wife community property.”
Amanda Bronstad can be contacted at firstname.lastname@example.org.