SHARIAsource editor Will Smiley questions the strength of the arguments behind proposed “anti-sharīʿa” legislation in Montana, including claims of Islamic law undermining American law.
Americans continue to debate, as they have since at least 2010, whether states should ban their courts from considering Islamic law, or “foreign” law more generally, in their decisions. Montana’s pending SB 97, if passed, would be one such ban, preventing courts from “bas[ing] its ruling or decision on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution.”[1] A recent editorial in the Montana Standard, written by Cindy Sanderson, advocates this bill by citing several cases in which courts, she argues, have cited Islamic law.[2]
This list of cases, however, conflates several different things. Some of these decisions involved parties who tried to rely on Islamic beliefs in their arguments; others involved parties who made agreements based on their understanding of Islamic law; and others still involved court decisions from foreign countries whose law is partly inspired by Islamic law. These are all different situations. More importantly, just because all of these cases involved Islamic or foreign law in some way, does not mean that courts followed Islamic law, or based their decisions on Islamic law. That is the critical issue, because only decisions based on foreign law would be banned by Montana’s SB 97. Only a few of the cases Sanderson cites have been based on foreign law, and only after courts considered whether that law met American standards. This is clear by reviewing a few of the cases at issue.
Some of these cases turned on religious beliefs, not on Islamic law. In the 1998 case People v. Jones, for example, a man, Edwin A. Jones, who had murdered his wife, claimed that his religion, Islam, allowed him to do this.[3] But simply because a defendant claims something does not make it true, and does not mean the court will accept the claim—as this one did not. The defendant’s attorney was unable to locate a single Islamic scholar who would testify that the religion allowed him to murder his wife. Jones then lodged an appeal, which a higher court sharply rejected. The Appellate Court of Illinois “seriously doubt[ed]” that the defendant could find any scholar who would grant Jones’s actions “any Islamic license.” But more importantly, the court repeated a common principle, just as applicable to Muslim criminals as to Christian criminals: “If a religion sanctions conduct that can form the basis for murder, and a practitioner engages in such conduct and kills someone, that practitioner need be prepared to speak to God from prison.”[4] In no sense, therefore, was this case based on Islamic law, and no law like Montana’s SB 97 would have made any difference to its outcome. Jones remains in custody to this day.[5]
Likewise, Sanderson cites two cases of “honor killings” in which Muslim men killed their daughters. It is unclear whether either of these men believed their religion justified their actions.[6] But in both cases, the men were convicted of murder and sentenced to lengthy prison terms. In neither case did any judge base any decision on foreign law or Islamic law.
Other cases turned on agreements—contracts—that parties entered into based on their religious beliefs, without necessarily invoking Islamic law itself. In such cases, courts need to decide whether to enforce those agreements. In doing so, however, they draw not on Islamic law, but on U.S. law—the existing law of contracts, which determines when and how courts will enforce agreements between individuals. It makes little difference why the individuals chose certain terms, or whether they chose those terms because they believed their religion required them. Indeed, in one of the cases Sanderson cites, American courts refused to enforce an agreement inspired by Islamic law.[7]
Other cases, often family law cases, involve the laws and court decisions of foreign countries whose legal systems at least partly draw on Islamic law. In a mobile world where people might marry in one country, divorce in another, and then dispute child custody in a third country, American courts frequently have to deal with foreign court decisions. Take the case of child custody, for example. When confronted with a foreign court decision assigning custody, an American court may or may not decide to recognize it. In legal terms, this is called granting comity. Courts cannot grant comity if a foreign decision conflicts with the “public policy” of their own state.[8] In the case of child custody, courts are bound by a further restriction: the “best interest of the child,” which is the law in all 50 states. U.S. courts are unlikely to recognize foreign custody decisions that do not meet this standard.[9] This is already part of every state’s law, even without laws like Montana’s SB 97. It means that courts often do not recognize foreign decisions, and when they do, it is only after considering whether the foreign decision meets American standards. These decisions on whether to grant comity are based on U.S. law, not on foreign or Islamic law.
Let us consider one case, cited by Sanderson. In Malak v. Malak, a California court was faced with a couple of Lebanese origin, Laila Sawaya Malak and Abdul Latif Malak.[10] The two had lived in the United Arab Emirates before Laila, the mother, took the children to California and filed for divorce. Abdul Latif, the husband, obtained two foreign court decisions awarding the children to him: one from Lebanon and the other from the UAE. The first California judge to review the case refused to recognize either decree. Neither the Lebanese nor the UAE court, the judge found, had given Laila an opportunity to present her arguments. Moreover, the judge doubted whether either Lebanese or UAE custody laws, under which these decisions had been made, met U.S. standards—they did not sufficiently consider the child’s best interests, as U.S. law requires. Abdul Latif appealed. A higher California court, after carefully reviewing the previous proceedings in Lebanon and the UAE, agreed with the lower court that the UAE decision would not be recognized. In Lebanon, however, the appellate court felt that Laila had been given “reasonable notice and opportunity to be heard.” Moreover, Judge Nat Agliano and two others found that “[t]he record also shows that the Lebanese court did take the best interests of the children into consideration.”[11]
As this case shows, U.S. courts are already required to consider carefully both the process and the law that lies behind foreign court decisions. Sometimes they will recognize them; other times they will not. Indeed, in two 2010 cases, Massachusetts courts, based on their own review of Lebanese custody decisions, refused to enforce them.[12] Since all of these courts are already required to consider whether foreign decisions violate public policy or, in custody cases, differ too much from U.S. standards, it is unclear if the additional requirements of SB 97 would make any difference.
The list of cases cited by Sanderson in the Montana Standard, then, illustrates that it is more difficult than it might seem to find U.S. cases that are “based on” Islamic law or the law of Muslim countries. Indeed, even when U.S. courts do recognize foreign court decisions, they are required first to ensure that the foreign decision met U.S. standards. These cases, therefore, do not provide evidence that U.S. courts are frequently basing their decisions on foreign or Islamic law, that this is harmful, or that SB 97 would substantially change the situation.
Will Smiley is a Golieb Fellow in Legal History at NYU and an Assistant Professor of History and Humanities at Reed College. He received his JD from Yale Law School and PhD in Middle Eastern Studies from the University of Cambridge.
[1] Montana Senate Bill 97, Amended (2017 Session), https://legiscan.com/MT/text/SB97/2017 (accessed March 6, 2017).
[2] Cindy Sanderson, “Sharia Islamic Law is a Threat to Montana,” Montana Standard, February 13, 2017, http://mtstandard.com/news/opinion/guest/sharia-islamic-law-is-a-threat-to-montana/article_d3a21cc9-cc2a-52ee-9ca9-1813a2ae024d.html.
[3] People v. Jones, 697 N.E.2d 457 (Ill. App. Ct. 1988).
[4] Ibid., 460.
[5] Illinois Department of Corrections, “Internet Inmate Status: N50509 – Jones, Edwin A.,” https://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=N50509.
[6] “Man Sentenced to Life in Stepdaughter’s Slaying,” CBS Detroit, Nov. 16, 2012, http://detroit.cbslocal.com/2012/11/16/man-sentenced-to-life-in-stepdaughters-slaying/; Paul Rubin, “Iraq Native Faleh Almaleki Gets 34 Years in Prison for Murdering His Americanized Daughter,” Phoenix New Times, April 21, 2011, http://www.phoenixnewtimes.com/news/iraq-native-faleh-almaleki-gets-34-years-in-prison-for-murdering-his-americanized-daughter-6448238.
[7] In re Marriage of Obaidi and Qayoum, 226 P.3d 787 (Wash. Ct. App. 2010).
[8] See Sarah M. Fallon, “Justice for All: American Muslims, Sharia Law, and Maintaining Comity within American Jurisprudence,” Boston College International & Comparative Law Review 36 (2013), 153; ACLU, “Nothing to Fear: Debunking the Mythical ‘Sharia Threat’ to Our Judicial System” (2011), 3.
[9] Monica E. Henderson, “U.S. State Court Review of Islamic Law Custody Decrees—When Are Islamic Custody Decrees in the Child’s Best Interest?,” Brandeis Journal of Family Law 36 (1998), 423-4. In two of the cases at issue, U.S. courts did not grant comity: Aleem v. Aleem, 931 A.2d 1123 (Md. Ct. Spec. App. 2007); Charara v. Yatim, 937 N.E.2d 490 (Mass. App. Ct. 2010).
[10] Malak v. Malak (In re Marriage of Malak), 227 Cal. App. 3d 1018 (Cal. Ct. App. 1986).
[11] Ibid.,1025, 1027.
[12] See El Chaar v. Chehab, 941 N.E.2d 75 (Mass. App. Ct. 2010); Charara v. Yatim, 937 N.E.2d 490 (Mass. App. Ct. 2010).