LF: The Fraudulent Sharia in American Courts "Study"

Recently the Center for Security Policy, led by the absolutely deranged Frank Gaffney, put out a "study" called Shariah in American Courts that pinpoints 50 rulings from the courts in 23 states that supposedly prove Gaffney's moronic "creeping Sharia" position. I've finally gotten around to reading that report.

Let me make this as clear as I possibly can: This report is not merely badly researched and badly prepared, it is an outright fraud. No one who actually reads the rulings could reach anything but the opposite conclusion from the one they intend to foster. Nearly every single case they offer argues against their conclusion. Now let me prove that assertion.

The website for the report includes a state-by-state database of all the rulings they allege show that American courts are enforcing Sharia law. The very first one I looked at, naturally, was from Michigan. It was a divorce and property division case involving two Muslim citizens of India living in Michigan.

In April 2008, the husband went to India and performed what is known as the "triple talaq" in Islamic law, which allows a man (but not the woman, of course) to divorce his wife merely by declaring that he wants to divorce her three times. The wife then filed for divorce in Michigan and the husband filed a motion to dismiss the case because, he claimed, they were already divorced under Indian law (and they were; talaq divorces are recognized as legal in India).

And here's the important part: The ruling that they cite agreed with the wife. They refused to recognize the Indian talaq divorce specifically on the grounds that said divorce proceeding provided no due process for the wife:

Plaintiff did not enjoy the basic rudiments of due process in the instant Indian divorce. Further, she was not represented by an attorney and had no right to be present at the pronouncement. The divorce provided no opportunity for a hearing on the merits and it was not overseen by a court of law...

The Equal Protection Clauses of the United States and Michigan Constitutions provide that no person shall be denied the equal protection of the law. If the state distinguishes between persons, the distinctions must not be "`arbitrary or invidious.'" Wives have no right to pronounce the talaq. This distinction is arbitrary and invidious. To accord comity to a system that denies equal protection would ignore the rights of citizens and persons under the protection of Michigan's laws.

Not only did the court not apply Sharia law, they explicitly rejected any such application and did so precisely on the grounds that doing so would violate the rights of the woman who filed the suit. And this is offered as evidence of creeping Sharia. That alone should give you some idea of the intellectual honesty of those who put out the report. But this is not an isolated example.

After the Michigan case I decided to start going through the list alphabetically to see if they get any better. So I looked at the case they cite from Arizona, which involves a fight over a debt incurred by the husband of a Syrian couple. He bought a half interest in a restaurant and a day care center and his partners ended up suing him over a debt allegedly owed; the issue in the case was whether the debt was community property, whether it attached only to him or to his wife as well.

The interest in the businesses was purchased before the couple came to the United States and the court concluded, therefore, that whether it was community property or not should be determined by the law of their native land, Syria. That, supposedly, is what makes this about "imposing Sharia law." But here again, it shows the exact opposite. In fact, Syrian law differs depending on what religion you are. And this couple happens to be Catholic. Thus, the ruling says:

Consequently, Article 10 of Decree 60/L.R. of March 13, 1936, as amended by Decree 146/L.R. of 1938, which is still in effect, stipulates that Syrian and Lebanese members of recognized religious communities shall be subject to the legal system of their own personal status laws in matters of personal status and to the provisions of the Civil Code in matters that do not fall under the jurisdiction of that system.

According to Article 39 of the Law of Personal Status for the Catholic communities (Syrians and Lebanese), spouses may each keep ownership of movable and immovable properties. The Article reads as follows:

"Article 39 A married couple may each keep ownership of movable and immovable properties and the right to manage them, to benefit from them, and keep the proceeds of such worth unless they have agreed in writing to the contrary." ...

Hence, it is obvious that the concept of community property as a result of marriage does not exist in Morocco or in Syria. Any community property must be designated as such by either one of the spouses at the time of purchasing any real property and registering the other party as co-owner. Without such registration neither the wife nor the husband has a claim against the other.

In conclusion, the wife in a Syrian Catholic marriage does not share her husband's properties, nor does she have an ownership interest in her husband's earnings unless he has specially registered part of his property to her in the public records.

There was no evidence that Zouheil did so here. Therefore, the note was Zouheil's separate property unless it was transmuted to community property.

So once again, not only is this not an example of a court "imposing Sharia law," the court explicitly applied Catholic law from Syria. And it should be noted that even if they had applied Muslim law from Syria, that is what the law requires the court to do in such property disputes involving citizens of another country. Whether that country's laws are based on Islamic law or not, there are situations where American law requires the courts to apply foreign law when it involves contracts and other legal instruments executed under those laws. Even if the ruling had done what they imply it did, this would not be an example of "creeping Sharia" but merely an example of a court applying foreign law in a situation where precedent requires it. But in reality, the ruling showed the exact opposite of what it purports to show.

Example #3. I then went on to the example from Arkansas. This case involves a mosque whose board fired their imam. The imam then filed a lawsuit for breach of contract and the courts dismissed it, saying that they had no jurisdiction over such decisions made by a religious body. That's right. Not only did the courts not "impose Sharia law," they refused to get involved in any dispute involving Islamic law and stayed out of the matter completely.

The only way appellant can recover for breach of contract in this case is if the ICLR did not terminate him "on valid grounds according to Islamic Jurisdiction (Shair'a)." Second, appellant's claims that there are no ecclesiastical issues involved and that he is not seeking reinstatement but only damages do not persuade us that the circuit court erred in finding it had no subject-matter jurisdiction. Appellant is suing for breach of contract. Regardless of the remedy he is requesting--and in this case he is seeking the traditional remedy of damages as opposed to specific performance--the court must review whether the grounds for termination were "valid grounds according to Islamic Jurisdiction." It is our opinion that any determination of this claim would involve ecclesiastical issues.

Finally, the courts have held that the First Amendment protects the act of decision rather than the motivation behind it; therefore, whether the termination of appellant was based on secular reasons or Islamic doctrine, this court will not involve itself in ICLR's right to choose ministers without government interference.

Now here's the part I find funny. The bold print on "Islamic" is in the original. In fact, in every single page of the state database they put in bold every cognate of "Islamic" and also any names of any Muslim countries, like Iran and Syria. Apparently they want you to believe that any case that even mentions Islam or a Muslim country is an attempt to impose Sharia law -- even when each one of those cases does the exact opposite of imposing Sharia law.

Okay, one more example. The next one on the list was from California. It involves a probate dispute over several properties in Iran between the estranged wife of a deceased man (the wife lived in California) and the daughter of the deceased man. The wife hired a lawyer in Iran to handle the Iranian properties and get her the money from them; the daughter then filed suit in California seeking a portion of the money.

The wife then filed a motion to dismiss the case on the grounds that it should properly have been filed in Iran, where the properties are located. And true to form, the report puts in bold type every word that is even remotely related to Islam or Iran -- despite the fact that the family in this case Bah'ai, not Muslim. And despite the fact that, once again, the court did the exact opposite of the report's conclusion.

That's right, the court rejected the motion to dismiss and move the case to Iran. And they did so precisely because the Iranian courts enforced Muslim law and had no judicial independence.

Soleimani insists Iran is a more appropriate forum than California in which to resolve this matter. She asserts "Iran is a foreign independent sovereignty. Its Constitution not only supports the notion of `due process of law' through its modern legal principals [sic], but also specifically recognizes separation of the three branches of government: Judiciary, Legislative and Administrative." Soleimani, however, has offered no evidence to support this contention, or to illustrate how Iran's purportedly independent Constitutional law is implemented on a practical level.

Karson, on the other hand, cites several sources which indicate Iran may well lack an independent judiciary that adheres to principles of due process. For example, Karson points to the Department of State's (DOS), 2008 Report on Human Rights Practices in Iran, submitted to Congress on February 25, 2009 (Report). According to the Report, although the Iranian judiciary is purportedly independent from the government's executive and legislative branches, in practice the judiciary remains under the influence of executive and religious authorities. Indeed, even Soleimani points to an inextricably intertwined relationship between the religious and judicial institutions, as a basis for why Iran provides a more suitable forum in which to resolve Karson's claims. (See Motion to Dismiss, Memorandum of Points and Authorities, at pp. 2, 10 (noting that "disposition of this matter would inherently and inseparably involve[] the laws of Iran and Islam," both procedurally and on the merits), and 12 (asserting that, litigating in California will require court to become "familiar with the Iranian and Islamic laws that led to the matter").) Karson also notes the Report opines that there is a "glaring" absence of due process in Iranian courts where, for example, it requires "[t]he testimony of two women [to] equal . . . that of one man." Karson also argues that, because inheritance laws in Iran favor Muslims over non-Muslims, to maximize her ability to prevail against Soleimani in Iran, she would likely need to reveal that Soleimani is Baha'i, as was her father, that Soleimani purposefully misled the Iranian judiciary to believe she and her late husband were Muslim, and that Soleimani and Doroodian bribed civil servants to shepherd Ardakani's estate through probate. Karson observes that, if her revelations are deemed credible, Soleimani is likely to suffer severe penalties, because members of the Baha'i faith have few rights in Iran and inheritance of property is not among them. Further, Karson argues that even if she obtained an Iranian judgment against Soleimani which she sought to enforce in the U.S., she would, in all likelihood be unable to do so in light of the Iranian government's treatment of Baha'is. That judgment would have been obtained in violation of Soleimani's right of due process, as our courts understand that term, and no American court would enforce it. (See e.g., Chong, supra, 58 Cal.App.4th at p. 1037; Stangvik, supra, 54 Cal.3d at p. 752, fn. 3; Bank Melli Iran v. Pahlavi (9th Cir. 1995) 58 F.3d 1406, 1410-1414 [observing that evidence contained in several DOS Reports on Human Rights Practices in Iran (1982-1986), demonstrated that any judgment plaintiff might obtain against defendant (the sister of former Shah) in Iran would have been obtained in violation of defendant's due process rights, and be unenforceable in U.S. because defendant could not have received a fair trial under Iranian system of jurisprudence].)

In sum, as the moving party, Soleimani bore the burden to show that California is an inconvenient forum. To satisfy this burden, she was required to produce evidence; bald assertions will not suffice. We find Soleimani failed to meet her burden on the threshold issue as to the suitability of the proposed alternative forum.

So once again, not only is this case not an example of a court "imposing Sharia law," it is a perfect example of the contrary. The court explicitly refused to allow the case to be moved to Iran and did so because that country follows Islamic law, discriminates against Bah'ais and offers no due process.

The punchline to all of this is that each and every one of those first four examples was rated as "highly relevant" to the conclusion of the report. In fact, I think all of them are rated that way. And as you go down the list, you find the same exact thing again and again. The 5th case, and 2nd case from California, involves a woman demanding child support and alimony based on an alleged Islamic "Muta" marriage that was performed only by she and a man in their own apartment with no one else present and no marriage license. The court ruled that this was not a legal marriage at all -- again, the exact opposite of what is implied. And it just goes on and on like this, each ruling not only not involving the imposition of Sharia law, but most of them involving the explicit rejection of Sharia law.

Here's how the CSP sells this report before you read it:

These cases are the stories of Muslim American families, mostly Muslim women and children, who were asking American courts to preserve their rights to equal protection and due process. These families came to America for freedom from the discriminatory and cruel laws of Shariah. When our courts then apply Shariah law in the lives of these families, and deny them equal protection, they are betraying the principles on which America was founded.

The study's findings suggest that Shariah law has entered into state court decisions, in conflict with the Constitution and state public policy. Some commentators have said there are no more than one or two cases of Shariah law in U.S. state court cases; yet we found 50 significant cases just from the small sample of appellate published cases.

Which might be relevant if most of those cases didn't show the exact opposite of what you're claiming here. This report is not just bad. It's not just inaccurate. It's an outright fraud.