Bench Memos

‘Sharia Law’ Becomes an Issue in the Texas Supreme Court Election

In a recent post, I briefly described the election contest now underway for the Texas Supreme Court seat currently held by incumbent Justice Debra Lehrmann, who is being challenged in the Republican primary by First Court of Appeals Justice Michael Massengale, who has collected a number of impressive endorsements, most recently from the influential Texans for Fiscal Responsibility. Election campaigns can be heated affairs, with misleading ads, unfounded accusations, and unsavory innuendos — especially when a candidate gets desperate. Even though the candidates wear black robes while on the job, judicial elections are no different. In the Lehrmann-Massengale race, one of Justice Lehrmann’s prominent supporters has charged that Justice Massengale “allowed,” “upheld,” or “permitted” Sharia law in a case he decided while on the Court of Appeals, Ashfaq v. Ashfaq. In Texas, and especially in a Republican primary, the claim that a judge is “soft” on Sharia law is a serious matter.

Massengale, a devout Catholic and former president of the Houston Lawyers’ Chapter of the Federalist Society, running as a judicial conservative, is unlikely to be a closet adherent to Islamic religious precepts, but the Lehrmann camp is presumably hoping to hoodwink primary voters with inflammatory (albeit unfounded) rhetoric. After all, in 1964 LBJ famously suggested in the so-called “Daisy Girl” ad that, if elected, Barry Goldwater would start a nuclear war. That demagogic ad, which aired only once, is widely credited as an important factor in LBJ’s landslide victory over Goldwater. And, ever since, political candidates (and their unscrupulous consultants) have been inspired to resort to such negative ads to win elections. But what of the charge? Did Massengale apply Sharia law in a case? The answer is an emphatic “No.”

Ashfaq v. Ashfaq, decided on April 28, 2015, was a routine divorce case. Mohammad Ashfaq and Fariha Ashfaq, both Pakistani citizens, were married in Pakistan in 2007. They lived together in the United States as husband and wife for approximately five months in 2009, and then returned to Pakistan, where in November 2009 Mohammad divorced Fariha in accordance with Pakistani law (e.g., he gave her notice, returned her personal effects, and made a “dowry” payment, which she accepted). Mohammad, who had dual U.S.-Pakistani citizenship, moved back to Texas in November 2009 and eventually remarried. In April 2010, Fariha also returned to Texas. In October 2011, she petitioned for a divorce in a Texas court. Mohammad presented the Pakistani divorce decree as a defense. After conducting a bench trial with expert witness testimony regarding Pakistani family law, the trial court in Texas concluded that the November 2009 divorce Mohammad obtained in Pakistan was valid under Pakistani law. Accordingly, the trial court dismissed the divorce action but, importantly, also divided the parties’ assets and entered a judgment to that effect.

Strangely, Fariha appealed the dismissal of the divorce action (remember that she was seeking a divorce, but the trial court found that she was already divorced), but did not contest the division of assets. The appeal was heard by a three-judge panel of the First Court of Appeals in Houston, including Massengale, but the unanimous opinion was written by Justice Jane Bland. (The third member of the panel was Justice Evelyn Keyes.) The Court of Appeals upheld the trial court’s decision under an abuse of discretion standard, relying upon the undisputed expert testimony and crediting the trial court’s credibility determinations regarding lay testimony. The Court of Appeals declined to disregard the Pakistani divorce on public policy grounds because Fariha was not disputing the division of marital property. Fariha did not seek review of the Court of Appeals’s decision by the Texas Supreme Court.

Ashfaq v. Ashfaq was an easy case, correctly decided by all four jurists who were involved. It has nothing to do with Sharia law. The trial court simply recognized a Pakistani divorce decree issued to two Pakistani citizens who were married and divorced in Pakistan. Fariha — a Pakistani citizen — was not prejudiced by the Pakistani proceeding in any way; for obscure and possibly vindictive reasons she was attempting to obtain a re-divorce in Texas. The Court of Appeals (including two women) upheld the trial court, as appellate courts are supposed to do in the absence of error or an abuse of discretion. Massengale did not even write the decision!

Lehrmann has personally disavowed any contention that Ashfaq v. Ashfaq was incorrectly decided, yet her surrogates persist with the scurrilous claim that Massengale “supports” Sharia law. In fact, the unfounded attack on Ashfaq v. Ashfaq was first made by Senator Donna Campbell, a state legislator whose endorsement Lehrmann conspicuously touts. Campbell is a leading proponent of legislation that would ban the use of Sharia law in lieu of applicable domestic law in Texas courts — referred to as “American Law for American Courts.” Massengale supports the enactment of ALAC. After Campbell’s misguided attack on Ashfaq v. Ashfaq was raised by Lehrmann supporters in the Lehrmann-Massengale race, a panel of conservative lawyers who support ALAC wrote an open letter denouncing the charge that Massengale “supported” the application of Sharia law. The sole issue in Ashfaq v. Ashfaq was simply whether two parties were already divorced under Pakistani law. State courts — in Texas and elsewhere — routinely recognize marriages, divorces, and other legal judgments from foreign countries (even Muslim countries) so long as they do not violate public policy in the United States.

That Lehrmann’s supporters rely on such a specious issue in the campaign speaks volumes. Is there no legitimate reason for voters to re-elect Debra Lehrmann? If Lehrmann truly disavows her supporters’ reliance on Ashfaq v. Ashfaq, she should condemn it and demand that they cease this vile smear. Unless and until she does so, voters will assume that she condones her supporters’ tactics on her behalf — a poor reflection on her judicial temperament. The Republican primary is still several months away. How much lower will Lehrmann’s supporters sink? What other baseless charges will they make? Stay tuned.

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