November 6, 2011
Sharia's Encroachment into American CourtsBy Janet Levy
Currently an estimated 2.6 million observant Muslims reside in the United States. Many live their lives according to sharia law, the moral and religious code of the Islamic faith. When Muslims bring legal disputes into U.S. courts, a legal dilemma often arises, pitting individual rights guaranteed by the U.S. Constitution and laws against Islamic sharia law.
Increasingly, U.S. courts have yielded to sharia. In effect, our judicial system is failing to adhere to the very beliefs on which this country was founded. Sharia advocates are overturning our long-held legal traditions to follow precepts laid down by a faith that represents less than one percent of our population and whose beliefs are at odds with U.S. legal and spiritual history.
American law reflects Judeo-Christian values and traditions. These have always operated under the precept, "Render unto Caesar the things which are Caesar's, and unto G-d the things that are G-d's." This separation, which created the historic distinction between religious leadership and secular authority in the United States, is now being threatened, as sharia has encroached into the American legal system, and Muslim advocacy groups have increased pressure to institute sharia. Two notable cases illustrate this trend.
Hosain v. Malik
Under U.S. law, child custody cases follow the legal standard of "the best interests of the child." This can mean joint custody of children by both parents, full custody solely by the mother or father, or, if both parents are unfit, custody by relatives or guardians. Under sharia or Islamic doctrine, however, fathers receive sole custody when children reach seven years of age, regardless of family circumstances.
That's exactly how Hosain v. Malik was decided in 1996 when an American court in Maryland awarded full custody of a daughter to her father, enforcing a court order from Pakistan, an Islamic country that follows sharia law. Although the mother in the custody battle was never deemed unfit and the daughter was actually afraid of her father, an alleged substance abuser and batterer, the U.S. court enforced sharia requirements. Further, the child's attorney was not present at the custody decision to advocate for the child, and no input was sought from the daughter, as is standard in U.S. custody cases.
In the Hosain v. Malik case, the husband's attorney cleverly twisted the "best interest of the child" requirement and argued that in Pakistani culture, the well-being of the child is facilitated by adherence to Islamic teaching, which mandates custody to the father. In this case, the child was sent back to Pakistan with the father, violating the child's human rights to enjoy a relationship with her mother and violating the mother's rights as a woman. Further, the father accused his ex-wife of adultery, which meant that if she returned to Pakistan she could face imprisonment, lashing, or even death by stoning under sharia.
New Jersey Divorce Case
In June 2009, a divorced Muslim woman (unnamed by the court), who was raped and assaulted by her husband, requested a restraining order from a New Jersey family court. The presiding judge denied the woman's request and stated that "the court believes that the husband was operating under his belief (Islamic sharia) that his demand to have sex whenever he so desired was not prohibited." Remarkably, the husband's imam testified at the trial to affirm that under the sharia, a wife is required to comply with her husband's sexual demands.
However, according to New Jersey law, coerced sex between married persons is considered rape regardless of whatever imams, rabbis, and priests declare it religiously sanctioned. Thirteen months later, the decision was overturned. But in the interim, the woman endured the stress of living without protection from a violent man whose right to rape, sanctioned by sharia, had been supported by the American judicial system.
These cases, which received limited media coverage, illustrate failure by the courts to maintain the integrity of state and federal laws. (For more examples, see the recent report from the Center for Security Policy, "Sharia Law and American State Courts: An Assessment of State Appellate Court Cases"). Our legal system must insure that constitutional guarantees are not influenced by any outside legal systems, including religious or foreign laws, such as sharia, which are hostile to our legal traditions.
Sharia is Allah's law, and it stands above all man-made laws. This immutable Islamic legal doctrine derives from the Koran and other sacred Islamic texts, interpretations, and rulings. It mandates gender apartheid, religious discrimination, Muslim supremacy, cruel punishments, and the denial of free speech and religion, among other things. Requirements are detailed for every aspect of life, from the correct use of the toilet to the treatment of non-Muslims to proper wife-beating techniques.
Islamic doctrine recognizes men as superior to women in matters of civil arbitration and thus promotes the unequal treatment of women. Under sharia, the list of inequalities include: a woman's testimony is valued at half that of a man's, she may be convicted of sexual misconduct if she is raped unless she produces four male witnesses, she receives half the inheritance of male offspring, her husband may freely divorce her without providing for her welfare, she may be raped with impunity, and she may be beaten as her husband sees fit. All these abuses, which violate U.S. laws for equal treatment of the sexes, are perfectly acceptable under sharia law.
Sharia law requires the segregation of Muslims from non-Muslims, assigns a subservient status to non-Muslims, forbids certain religious activities and observances and mandates death for Muslims who leave the faith -- all of which violate religious freedom, equal treatment under the law, and other guarantees in the U.S. constitution.
Jewish Law and Catholic Canon Law
Many who defend rulings that follow Islamic doctrine or sharia make spurious comparisons to Jewish law and Catholic Canon law. These comparisons are disingenuous because the distinctions couldn't be more striking between sharia and the laws of Jews and Catholics.
Islamic law or sharia is supremacist and triumphalist. The Koran commands Muslims to change secular laws to conform to sharia or to impose sharia worldwide. In Muslim countries, the mosque is both the state and the court. Disobeying sharia can be punished by flogging or death.
By contrast, Jewish (Halacha) and Catholic Canon laws are never imposed even for Jews and Catholics, respectively. Under Jewish law and Canon law, any two parties in a dispute can choose to seek and follow a decision rendered by a religious court, but they are always free to pursue secular redress. In fact, Jews and Catholics are required to follow secular law and are under no obligation whatsoever to abide by Jewish or Catholic Church doctrine. The dictum in Jewish law of "Dina d'malchuta dina" translates to "the law of the land is law" and recognizes non-Jewish laws and non-Jewish legal jurisdiction as binding on Jewish citizens. Jewish law does not operate under a supremacist power structure like Islamic doctrine. It is unenforceable, and it is not a replacement for constitutional law.
In contradiction to Church doctrine, Catholic men and women can freely initiate divorces without fear of punishment. A Catholic woman can even have an abortion, although abortion is condemned by the Catholic Church. Catholics can be excommunicated from the church, but this doesn't affect their individual liberties or impose criminal punishments or penalties.
Unlike Islamic sharia, Jewish law and Canon law have no provisions for taking lives, criminal penalties, or monetary compensation for non-money damages. No doctrinal basis exists to create a worldwide Jewish or Catholic government like an Islamic caliphate, nor is there a religious mandate for martyrdom similar to a jihad to fulfill Judaic or Catholic devotion. If a Catholic woman engaged in an extramarital affair, she would not be sentenced to death by stoning as she would be under Islamic doctrine. If her father or brother murdered her for her impropriety, they would be incarcerated for life or receive the death penalty by the appropriate authorities...and certainly not be praised for maintaining family honor, as is the case with sharia. Catholics and Jews are free to change their religions without the threat of punishment by death faced by Muslims.
While sharia is immutable, Jewish and Canon law has evolved over time to embrace new interpretations. Jewish law allows the latitude for judicial discretion, and innovations are frequently proposed and instituted. Catholic Canon has also changed with varying circumstances and has a rich historic basis of evolution, beginning with the First Council of Nicaea in 325 A.D.
Clearly, sharia is at odds with everything enshrined in our Constitution to honor and preserve individual liberties and freedom. Sharia stands in opposition to equal protection under the law for both sexes, all religions, all races, and all ethnicities. Ultimately, it replaces the constitution with the objective of submitting to Allah's law, which denies freedom, equality, tolerance, and justice.
Unfortunately, the United States is now on a slippery slope to allow sharia quarter in our American courtrooms. To permit this insidious divergence from U.S. and state law threatens the basic principles and liberties that Americans hold dear. In essence, sharia law is antithetical to the American concepts of freedom and equality.
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