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Should Shariah Count in Court?

December 21, 2011 By:
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State Rep. RoseMarie Swanger

The nationwide push to ban Shariah, or Islamic law, from being considered within the scope of American jurisprudence has arrived in Pennsylvania -- with Jews actively lining up both for and against the measure.

On one side are those who consider the campaign xenophobic and a violation of longstanding legal precedent in which American courts have considered foreign and religious laws. They say such an action could apply to Jewish law and therefore affect Jews as much as Muslims.
 
On the other side are Jewish activists who contend that Islamic extremists seek to spread Shariah law -- either through terrorism or the legal system -- and American courts and judges are unwittingly aiding in that effort.
 
The debate heated up last week when State Rep. RoseMarie Swanger, a Republican lawmaker who represents Lebanon County, near Harrisburg, introduced House Bill 2029.
 
The measure doesn't mention Islam or Shariah, but seeks to ban courts from taking into account "any foreign legal code or system" that fails to grant the same rights protected under the U.S. Constitution or Pennsylvania's Constitution.
 
Although secular courts don't settle religious disputes, religious law is sometimes explored in order to understand the nature of a particular dispute and help find a resolution. Discussions of Shariah and halachah, or Jewish law, most commonly arise in cases that involve divorce and custody disputes.
 
Commercial litigation is also an area where foreign law could come into play, though the Pennsylvania bill would exempt international business transactions.
 
Opponents and supporters say it is no secret that the law is intended to target Shariah, but Swanger denied this is the case.
 
"I don't mean to discriminate against anybody. I just want to see everybody protected under our law," Swanger said.
 
Two years ago, a ballot initiative passed in Oklahoma that forbade the application of Shariah in state courts. A federal judge blocked enforcement of the law.
 
Similar measures have been considered in at least two dozen states, but most have failed to pass. Arizona has passed its own version but it is unclear how the courts will enforce it.
 
The Pennsylvania House Judiciary Committee is considering Swanger's bill, which has 44 co-sponsors. It is unclear how much traction the bill will get but sources said there is little chance it will be acted upon quickly
 
Locally, the Anti-Defamation League fired off a statement opposing the measure.
 
"This bill attempts to address a problem that simply does not exist. There is no documented evidence of American courts unconstitutionally applying foreign or religious law. This bill is wholly unnecessary," said Barry Morrison, ADL regional director for Eastern Pennsylvania/Delaware/Southern New Jersey.
 
ADL's national director, Abraham Foxman, has called the idea that Shariah is taking over the courts a "pernicious conspiracy theory."
 
Morrison said the measure sends the wrong message.
 
"At best, HB 2029 is redundant; at worst, it could violate the constitutional rights of those in many religious communities," he added.
 
On the other side, the Middle East Forum, a Philadelphia-based think tank founded by conservative Jewish academic Daniel Pipes, has been advocating for the bill's passage. Representatives of the forum have met with lawmakers in Harrisburg and warned of what they see as the dangers posed by a widespread recognition of Muslim law.
 
"The Islamist goal, whether using terrorism or working through the system, is to apply Islamic law or Shariah," said Pipes. "The bill that has been introduced is an effort to say no, we have a Constitution."
 
Pipes added that Shariah's "essence might be summarized as the supremacy of Muslims over non-Muslims, males over females and the legitimacy of using force for the spread of Islam."
 
The Pennsylvania Jewish Coalition, which represents federations and community relations councils across the state, is studying the bill and has not yet taken a position.
 
Nationally, for the most part, major Jewish organizations have lined up opposing anti-Shariah laws. The effort has brought together some groups that rarely agree on church/ state issues.
 
Agudath Israel of America, the Orthodox Union, the American Jewish Committee and the Religious Action Center of Reform Judaism joined in a letter campaign earlier this year to urge lawmakers to reject such efforts.
 
But Pipes is certainly not the only Jew backing anti-Shariah laws. David Yerushalmi, an Orthodox lawyer based in New York, is considered a national leader in the movement.
 
"Because jihad necessarily advocates violence and the destruction of our representative, Constitution-based government, the advocacy of jihad by a Shariah authority presents a real and present danger," Yerushalmi wrote on his blog.
 
A much-cited example of the use of Shariah in court involved a 2010 New Jersey case in which a Moroccan woman sought a restraining order against her husband, claiming he had sexually assaulted her. The judge denied the request and found that the husband lacked criminal intent because, under Islamic law, he believed his wife did not have a right to refuse him. The ruling was reversed on appeal.
 
Abed Awad, a New Jersey lawyer who also serves as an expert witness on cases involving Islamic law, said opponents have painted a skewed picture of both Muslim law and its applications in American courts. He gave an example of a recent divorce case in Delaware involving a couple that got married in Egypt. To resolve how much money the wife was owed, the court looked to Egyptian law, which is based on Islamic law, in order to apply Delaware law.
 
There is concern about how such a law could be applied to cases involving Jews. Abba Cohen, Washington director of Agudath Israel of America, told the Jewish Telegraphic Agency that a number of recent arbitrations by Jewish religious courts, known as Beit Din, that were taken by litigants to civil courts could have no standing under the proposed laws. He cited as examples cases on whether a batch of etrogs met kosher standards; on whether a teacher at a yeshiva was rightfully dismissed and on the ownership of Torah scrolls.
 
According to Marc Stern, associate general counsel for legal advocacy at the American Jewish Committee, a well-known intersection of Jewish and American law happened in the 1950s when many Orthodox shuls became Conservative congregations, but some members objected and sued, pointing out that synagogue by-laws said everything must be conducted according to traditional Jewish law.
 
The Orthodox side won many of those cases because courts decided the synagogues had deviated from Jewish law. But today, Stern said, due to a series of Supreme Court decisions, the law would side with the majority rule of the congregation because courts could not interpret synagogue documents requiring compliance with Jewish law, said Stern.
 
"There is really no chance of Shariah or halachah being applied to somebody unwillingly," he said.
 
Stern said that if passed, the statute would be meaningless -- since courts don't unwittingly violate constitutional rights -- or the law would be so broad in its application that it could potentially ban any private agreement between two individuals based on religious law.
 
"Whatever effect it has on halachah and church cannon law," he said, "are road kill and incidental casualties of the war on Shariah law."

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