involving Sharia law in US courts says those fighting against Sharia have little idea what they are talking about.
Writing in the current issue of The Nation magazine, attorney Tim Robinson said US judges routinely cite Sharia law when it comes up in contract and divorce cases because the contract or marriage was conducted under Sharia law. They then accept Sharia law when it is in agreement with US law and reject it when it is in conflict with US law. It never takes precedence over US law—and cannot under the US Constitution.
Robinson writes: “The true story of Sharia in American courts is not one of a plot for imminent takeover but rather another part of the tale of globalization. Marriages, divorces, corporations and commercial transactions are global, meaning that US courts must regularly interpret and apply foreign law. Islamic law has been considered by American courts in everything from the recognition of foreign divorces and custody decrees to the validity of marriages, the enforcement of money judgments, and the awarding of damages in commercial disputes and negligence matters.”
Robinson says that as an attorney, consultant or expert witness, he has handled more than 100 cases involving components of Sharia.
“In a case I tried in 2002, Odatalla v. Odatalla, a New Jersey couple had signed an Islamic marriage contract consistent with their cultural traditions. When the wife filed for divorce, she asked the court to enforce the mahr, or dowry provision, in her contract, which called for the husband’s payment of $10,000 upon the dissolution of their marriage. Superior Court Judge John Selser found the marriage contract valid under New Jersey law, concluding, ‘Clearly, this court can enforce a contract which is not in contravention of established law or public policy’.”
In a 2003 case involving Exxon Mobil and a Saudi oil company, the parties had agreed that Saudi law would govern any potential disputes. The Saudi company later sued its former business partner in Delaware. Anderson said the Superior Court heard testimony on Saudi law, and the judge instructed the jury to base its decision on Saudi law, which is grounded in Sharia. The jury returned a $400 million-plus verdict in favor of Exxon Mobil and against the Saudi firm.
Robinson wrote, “In a more recent case I was involved in, a state judge declined to recognize a Syrian court order that would have transferred the custody of a child to her father because of the mother’s remarriage. The judge reasoned that remarriage alone is not sufficient to transfer custody. Far from deferring to judgments from foreign countries, US courts regularly refuse to recognize such orders due to the constitutional and due-process implications.”
Robinson said, “Had an anti-Sharia ban been in place in these courts, Exxon could not have won its verdict, nor would the wife in Odatalla have been able to enforce her marriage contract. The ban would have stripped those judges of their ability to fully and fairly consider the cases.”
He condemned anti-Sharia statutes as “an unconstitutional infringement of the people’s freedom of contract, free exercise of religion and right to equal protection. And what the anti-Sharia movement ignores is that, whether a US judge considers Sharia as a foreign law, as in the Exxon case, or as a way to better understand a dispute between parties, as in Odatalla, the extent of its applicability is always dictated by American law.”
There is one particular case that comes up in most of the states considering anti-Sharia legislation. That is a New Jersey case, S.D. v. M.J.R. Proponents of anti-Sharia laws portray it as proof that Islamic law is seeping into the US court system.
In that suit, a wife sought a restraining order against her husband, alleging that he repeatedly beat and sexually assaulted her. The New Jersey judge denied her request, saying the husband did not have the “criminal intent” required—under New Jersey law—to commit a crime. The judge said the criminal intent was absent because the husband’s religious beliefs told him he was entitled to sexual relations upon demand.
Robinson argued that this ruling was wrong—not only under New Jersey law but also under Sharia law. And, in the end, the New Jersey Appellate Court overruled the lower court’s judgment.
“Yet S.D. v. M.J.R. has become the poster child for the anti-Sharia movement,” Robinson said. During a Republican presidential debate one year ago, then-candidate Herman Cain cited it as proof that “there have been instances in New JerseyÖwhere Muslims did try to influence court decisions with Sharia law.”
The case has also been cited in state legislatures debating anti-Sharia legislation.
Robinson says, “The anti-Sharia crusade is not about the careful consideration of constitutional principles; it is about discrimination and bigotry.”
He points to a comment from attorney David Yerushalmi, the man who has drafted much of the anti-Sharia legislation floating around the country and the prime figure in promoting the issue. Yerushalmi told The New York Times his anti-Sharia campaign had a goal beyond the statutes themselves.
“If this thing passed in every state without any friction, it would have not served its purpose,” Yerushalmi said. “The purpose was heuristic—to get people asking this question, ‘What is Sharia?’”
Robinson concludes, “This question was meant to render Muslims suspect and their faith threatening to the rest of us.”
