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Re: Sharia -- Mr. Schmitz Is Wrong on the Law, Too



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I was disappointed to see NR publish the essay by Matthew Schmitz which, putting its substantive errors aside, piously complains about the “unhinged rhetoric” of his opponents right before smearing them as “anti-Muslim bigots.” Happily for me, I haven’t yet had time to engage — which is a coup for readers, who have the benefit of wisdom from Andy Bostom and David French, who’ve responded forcefully and, to my mind, convincingly.

Nevertheless, I see that while Mr. Schmitz has evidently decided defending sharia is not very comfortable ground on which to stand, he is claiming victory on what he continues, misleadingly, to call “anti-sharia legislation” — as if the people involved in crafting it were unaware of, or insensitive to, the line between protecting religious liberty and preventing a political ideology, under the guise of “religion,” from encroaching on core American principles (e.g., free speech, equal protection under the law, freedom of conscience). To the contrary, Schmitz’s contentions about the purported “legal uselessness and potential ill effects” of legislation — which is called “American Law for American Courts” — are as ill-informed and hyperbolic as the rest of his tirade. I asked my friend David Yerushalmi, who is the principle author of the model legislation, and whom I know to be a careful lawyer who has navigated the competing concerns with characteristic diligence, to weigh in. Here is his response:

 

David Yerushalmi:

As the “father” of the model legislation, American Laws for American Courts (ALAC), upon which the Kansas legislation about which Matthew Schmitz seems so particularly exercised, and as the wizard behind the curtain of the “anti-dharia” movement (per the New York Times, although I insist NRO’s own Andy McCarthy remains the unchallenged leader of this evil movement), I thought I would add a few words to Dr. Andy Bostom’s empirical critique of Mr. Schmitz’s underlying assumptions. As a lawyer versed in the jurisprudential traditions of our own constitutional and common law, in the Talmudic law followed by orthodox Jews, and in usul al fiqh, or Islamic jurisprudence, I thought I might touch upon the utter incoherence of Mr. Schmitz’s arguments.

Given Mr. Schmitz’s style of disputation, it would be useful to take note of the architecture of Mr. Schmitz’s essay as we critique it. Thus, the first three paragraphs attempt to describe the law. But here, Mr. Schmitz fails miserably and he does so by leaving out a critical ingredient. Specifically, he characterizes Kansas’s ALAC as a law that prohibits the application of foreign laws or the enforcement of foreign judgments in state courts if those laws or judgments violate a state or federal constitutional right. That is not what ALAC prohibits. ALAC precludes the state courts from giving effect to foreign laws or foreign judgments only when the application of those foreign laws or foreign judgments would deprive a party in a Kansas court of a constitutional right or liberty.

#more#In other words, a state court might very well apply sharia or the law of England, as courts do all of the time in the appropriate circumstance (i.e., the parties agree to such laws in a contract), as long as the particular aspect of sharia or the law of England does not undermine our own state and federal constitutions in the matter being adjudicated.

And, the reader will immediately realize that the Kansas ALAC is agnostic about whether the foreign law is a religious law or a secular foreign law. ALAC simply makes clear that those constitutional liberties that may not be waived, or may be waived but only under certain circumstances (e.g., after a fully informed consent), may not be undermined via the application of foreign laws or the enforcement of foreign judgments. Put simply, no court should allow a party to waive due process or equal protection. These are baseline constitutional protections ALAC seeks to protect. To put a more blunt tip to this point, would we allow a criminal defendant to waive her right not to be subject to cruel and unusual punishment or her right to a civil trial based upon fundamental fairness? The answer is no. And, this answer should not be undermined through the back door by granting constitutionally offensive foreign judgments or laws judicial credence.

In the last of the first three paragraphs addressing the description or nature of ALAC, Mr. Schmitz attempts to drag into the fray Jewish law and Christian canon, presumably to enlist other opponents to ALAC. But there is literally no instance of Jewish law or Christian canon being applied in a state court where a litigant is likely to be deprived of a constitutional liberty. And, the reason this is so is because neither of these religious laws occupy the space of authoritative state law. Sharia is problematic precisely because it is the secular law in almost all of the Muslim world, either as the law of the land simply or as the authoritative law in matters of family relations and citizenship or what is sometimes referred to as “identity law” in those Muslim countries which require their citizens to declare a religious affiliation for their “identity” cards — such that the law treats Muslim citizens differently from non-Muslims. 

But, even assuming there were such an occasion where a party ran into a state court and sought to enforce a Jewish court ruling which violated a party’s constitutional liberties, why should any state court grant such a ruling state approval, which in turn triggers the police power of enforcement? The proper response should be that if two religious adherents wish to submit their disputes to a religious tribunal, fine. And, like any arbitral award, the winning party may use the state court to enforce that ruling but only if that ruling accords with our fundamental constitutional liberties. State courts ought not to be in the business of using the state’s police power to enforce laws that violate our constitutional rights.

Moreover, ALAC makes explicit that it may not be interpreted to infringe on what the courts have determined are legitimate applications of religious freedom. Thus, if a church dispute erupts and lands in a state court, the abstention doctrine announced by our Supreme Court precludes a state court from intervening unless that intervention is based on a dispute that can be resolved on wholly secular, religiously-neutral grounds.

The next architectural layer of Mr. Schmitz’s essay consists of the next eleven paragraphs (nos. 5–16), which is not actually a criticism of ALAC per se, but a poorly constructed argument that ALAC is not necessary. Thus, paragraph five begins by providing the underlying motivation for the law: the fear of “creeping sharia.” Well, yes and no.

ALAC understands there is a growing problem in state and federal courts of transnationalism, or the globalization of both politics and law. Apparently Mr. Schmitz is not aware of the SPEECH Act of 2010, sometimes referred to as Rachel’s Law (named after Rachel Ehrenfeld, the law’s great proponent). The SPEECH Act was in reality a kind of federal ALAC but limited to the First Amendment and free speech rights. It was necessitated by the fact that authors, researchers and publishers who published facts about the financing and sponsoring of jihad from the golden tents of Saudi Arabia, Qatar, and Dubai, would find that they had been sued in England where the libel laws are so liberal they permit the suppression of free speech that would never pass muster in the U.S. But, once they obtain a judgment in England, they would travel to the U.S. and find a state court to grant the judgment comity, turning the plaintiff into a judgment creditor who could use the police power to have the sheriff physically enforce the judgment. The practice was so prevalent and dangerous it became known as libel tourism. In response, Congress passed the SPEECH Act which, like ALAC, prohibited granting those judgments comity if they did not provide the protections of our own First Amendment.

And, why was this necessary? Because state courts were not sure how to deal with this problem of transnationalism. While all state courts have adopted the common law doctrine of “void as against public policy” — a doctrine which allows a court to ignore a foreign law or judgment that might otherwise be given effect if that foreign law is repugnant to the public policy of the state — courts were not sure what the public policy was or should be. And, this lack of clarity was built into the “void as against public policy doctrine” because courts did not want to be in the business of legislating public policy limits. Thus, in every state you can find appellate court decisions making clear that the state legislature must define the parameters of what the state public policy is. Courts should only tepidly step into this arena. ALAC takes up this judicial invitation to have the legislature make clear that any foreign law, religious or secular, that violates a party’s constitutional liberties is void as a matter of public policy.

Mr. Schmitz attempts, though, to make his “not necessary” point by claiming that the few cases he knows about have been overturned on appeal. But this ignores the study cited by Dr. Bostom and published by the Center for Security Policy, of which I am general counsel, that tracked 50 cases of this sort. Now, any lawyer will tell you that if there are 50 published opinions from the appellate courts, there will be thousands of cases just like the New Jersey case where the judge applied sharia over U.S. law that are never published or appealed because the losing party simply didn’t have the wherewithal to fight the court’s ruling. 

Even more to the point, in Mr. Schmitz’s reply to Dr. Bostom, his response to the brute facts cited is to ignore those published cases and to pretend that this tip of the iceberg is little more than an ice cube melting away on a hot sidewalk outside a single court in a single state. But those are not the facts. So it is that Mr. Schmitz ignores an appellate court decision from Maryland, also cited in the Center for Security Policy Study, where the court enforced a Pakistani sharia court’s judgment of custody in favor of the father even though the mother had argued that she was not provided due process because had she gone to Pakistan to contest the case, she could have been subject to capital punishment for having a new relationship with a man not sanctioned by sharia. In the court’s own words:

Additionally, appellant [the mother] asserts that the Pakistani custody orders were founded on principles of law repugnant to Maryland public policy because the Pakistani courts allegedly “penalized the mother for not appearing without considering the affect of her admission to adultery on her ability to return to Pakistan.” In this regard, appellant points out that if convicted under Pakistani criminal law, her penalty could be public whipping or death by stoning.

Although Dr. Malik [the expert] opined that appellant would be arrested for adultery if she returned to Pakistan for the custody proceedings, he also conceded that punishment for adultery was extremely unlikely and that proving the crime was extremely difficult. Given this testimony, the circuit court was not clearly erroneous in not considering the effect of whether appellant’s admission to adultery [under sharia] was “repugnant” to Maryland public policy in its failure to find that the Pakistani courts punished her for not appearing.”

In other words, the Maryland appellate court ruled that since the woman could not prove she’d be executed had she gone to Pakistan to litigate custody in the Pakistan Sharia Court, which is a national-state court in Paksistan, her failure to go to Pakistan and take the risk of execution precluded her from making the void as against public policy argument. ALAC would have provided the Maryland appellate court the legislative clarity to have reversed the lower court’s outrageous decision.

In short, Mr. Schmitz argues that ALAC is unnecessary by simply ignoring the real world and the real lives being destroyed by the application of sharia and other constitutionally offensive laws in state courts every day.

The final portion of Mr. Schmitz’s argument (the last five paragraphs), and the one he focuses on in his reply to Dr. Bostom, is simply incoherent. Having told us sharia is nothing to worry about and having told us that ALAC simply does what the law now does anyway (both false assertions), Mr. Schmitz argues that ALAC will undermine our national security by alienating “peaceful Muslims.” How does a law that protects constitutional liberties alienate “peaceful Muslims?” Especially a law that is not specifically directed toward religious law but only constitutionally offensive foreign laws?

The remainder of this last layer of Mr. Schmitz’s argument takes quotes from two men who are not lawyers and who have, apparently, said stupid things. But even assuming these quotes are legitimate and these men are worth listening to, what does that say about the law itself? Nothing.

Finally, and for the record, the Oklahoma constitutional amendment which was challenged the day it was enacted and enjoined by a federal court from being formally adopted because it was likely unconstitutional, is substantively and procedurally unlike ALAC. Yet, Mr. Schmitz lumps the Oklahoma effort with the legislation that has passed in Kansas, Tennessee, Arizona, and Louisiana, all modeled after ALAC. The earliest of these laws have been on the books now for several years and have not even been challenged much less overturned. The reason is simple: They are constitutional and good policy to boot.



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