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Report Aiming to Prove ‘Creeping Shariah’ Theory Proves the Opposite

By Robert Steinback on June 14, 2011 - 5:31 pm, Posted in Anti-Muslim

The relentless campaign to fool Americans into believing the nation’s 220-year-old rock-steady Constitution could be toppled any moment by Muslim extremists intent on imposing Islamic Shariah law grinds on.

One of the latest entries into this charade is a study released last month by Frank Gaffney’s doggedly anti-Muslim think tank, the Center for Security Policy, that purports to demonstrate “the extent to which Shariah law had in fact entered U.S. state courts.”

The key word in that phrase appears to be “entered” – cleverly implying a cause for alarm that doesn’t exist. The 633-page report, entitled “Shariah Law and American State Courts,” is little more than a collection of 50 cases in which Shariah law – the Islamic code of law and moral conduct – or the law of a Muslim nation played some role, regardless of the outcome. In almost all the cases, the courts followed long-standing principles of U.S. law. In a very small number of cases, erroneous rulings by trial judges were properly overturned on appeal. If anything, the report is a vigorous affirmation that the U.S. legal system is working quite well and as designed.

That’s not what the anti-Muslim Greek Chorus wants you to believe, however.

“The analysis finds that Shariah has been applied or formally recognized in state court decisions, in conflict with the Constitution and state public policy,” said attorney-to-the-Islamophobes David Yerushalmi, according to the JihadWatch website (run by fellow anti-Muslim propagandist Robert Spencer). That statement is flat wrong: Aside from the rare erroneous (and subsequently overturned) trial court ruling, the report doesn’t document any constitutional or public policy conflict whatsoever. It contains not a single instance of Shariah law trumping U.S. law in a case that survived appeal.

The report claims to have identified 15 trial cases and 12 appellate cases in which Shariah was “applicable.” Gaffney deems these cases “Shariah-compliant” – even if the ruling was entirely consistent with U.S. law and supported by the case facts. The phrase “Shariah-compliant” subtly conveys a sense of American law shamefully kowtowing to Shariah law – which even the report itself demonstrates is nonsense.

So where do fact and fancy part ways? All of the cases cited in the report are civil, primarily marriage, child custody, property or contract matters that also involve international or ecclesiastical jurisdiction. In such cases, U.S. courts must decide whether and to what extent American law should govern. There is no singular principle to determine this; sometimes, a U.S. court will correctly conclude that a specific case falls partially or entirely outside the purview of American law.

In all of the cases cited in Gaffney’s report, one or both of the parties were Muslim or citizens of a Muslim nation. Since most Muslim nations use some variant of Shariah code in civil matters, any such case could be viewed as “introducing Shariah” into American courts. That’s the sly calculus Gaffney uses in his report.

In several of the cases, the court provided explicit smack-downs of Shariah law.

  • In a 1988 case in Iowa, the trial court denied a father’s request that jurisdiction in a custody dispute be turned over to an Islamic court in Jordan – and, in fact, ordered the father jailed on contempt of court charges for failing to produce his son. The appellate court agreed.
  • In a 1994 New Jersey child custody case, the appellate court ruled, “The law of the Sharia Court [in Gaza] is undeniably arbitrary and capricious and cannot be sanctioned by this court, which uses the ‘best interest of the Child’ as the overriding concern.”
  • In a 2009 Michigan case, an appeals court overturned a trial court decision that recognized the validity of a Shariah divorce obtained in India by the husband of a Muslim couple living in America, because it violated the wife’s due process rights.

Some of the report’s allegedly “Shariah-compliant” cases:

  • In a 2005 Iowa case, the trial court awarded custody of a child to her Jordanian father (who had also been granted custody by a Jordanian court) rather than to her Jordanian mother living in the United States, largely because the mother repeatedly lied to and defied the U.S. court about relevant issues.
  • In a 2004 Minnesota case involving parties to a restaurant purchase who had agreed to be governed by an Islamic arbitration committee, the trial court refused to intervene on behalf of one party who belatedly challenged a committee decision. The appeals court agreed with the lower court. Gaffney called both decisions “Shariah-compliant,” though they would more accurately be called “contract-compliant.”

In several cases cited, the American court refused to intervene in strictly religious matters:

  • In a 2006 Arkansas case, an imam filed a breach-of-contract suit against the board of his Little Rock mosque after it fired him. The trial court ruled, and the appellate court agreed, that the court had no jurisdiction over internal rules set by a religious body. These, to Gaffney, also represented “Shariah-compliant” rulings – even though all the courts did was to stay out of the matter.
  • In a 2011 Florida ruling, the court explicitly wrote, “Decisional case law both in Florida and the United States Supreme Court tells us that ecclesiastical law controls certain relations between members of a religious organization, whether a church, synagogue, temple or mosque.” In other words, it is an American legal tradition to allow religious authorities to decide strictly religious matters. Still, Gaffney’s report called the trial court’s ruling “Shariah-compliant.”

Also included in the report is the now-infamous 2010 New Jersey case in which a trial judge determined that a Muslim man had in fact raped his wife, but declined to issue a restraining order against him because the man believed his actions were permissible under his religious code. The appeals court lambasted that ruling: “The trial court abused its discretion by finding that domestic violence had been committed but failing to issue a final restraining order.” So even in the case most often cited by anti-Muslim activists as proof that Shariah is “creeping” into American jurisprudence, the U.S. legal system performed exactly as it should have by reversing a flawed lower court ruling.

Blogger Ed Brayton posted an analysis of Gaffney’s report deducing that since Gaffney included enough information in the report for a careful reader to determine that Shariah law is not creeping into U.S. jurisprudence – and, in fact, that U.S. law is as solid as ever in protecting the constitutional rights of Muslims and non-Muslims alike – Gaffney seems to be hoping people won’t read it carefully. If a reader relies only on Gaffney’s disingenuous analysis of his own findings, he will be sorely misled.

“This report is not merely badly researched and badly prepared, it is an outright fraud,” Brayton wrote. “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.”

  • http://www.youtube.com/user/GargamelGold?feature=mhee CriticalDragon1177

    Robert Steinback

    Unfortunately, Blogger Ed Brayton analysis of Gaffney’s fraudulent sharia in the courts study is no longer on the web. He closed the account he had on that site, so the blog posts there no longer exist. I read it through and he did an excellent job of debunking the “creeping sharia” claims.

  • Gary Williams

    Yes, I was just doing a story involving the PNACs use of deception to involve Americans in their own nationalist fervor and religious mysticism so common among Europeans of an earlier era.
    Gaffney, along with Libby, Perle, Kristol, Feith, Bolton and the usual assortment of right-wing extremists found there seem to be instep with or openly collaborating with hate groups of even the lowest ranking among others of similar disposition. which I find somewhat surprising given their general admittance into clubs and other places that would disallow a KKK Grande Idiote entrance for similar beliefs they typically would express without the same sophistication these practiced RWA-SDO (Altemeyer-Praddo) politicians are able to command.

  • David S. Robins

    If memory serves, Frank Gaffney was a minor official in the Department of Defense during the Reagan Administration. Even at that time, those of us working in the State Department knew or quickly learned that he was a rabid Arab hater totally committed to the the racist state of Israel. It’s sad to see that he has not matured or mellowed a bit over the past 40 plus years. One would think that he could have learned a bit over such a long spread of time, but, obviously, he has not.

  • Carl Stoll

    Shariah sounds just dandy. There’s just one problem> under Sharia any criticism of Islam carries and automatic death penalty by crucifixion or equally horrid means.Whether Shariah is ever seriously proposed or not is indifferent to me. I am against even any apparent or partial acceptance of Shariah.Any legal system that punishes free thought, even if that specific provision is not enacted, is anathema. I reject Shariah in toto as a despotic imposition. There are some really nice bits in the 1935 Soviet Constitution. Why not give them a whirl?

  • Mitch Beales

    Does the “Hudson Institute’s Center for Religious Freedom” support the right of Muslims to build a”mosque” in lower Manhattan or is it simply a hypocritical fraud?

  • Mitch Beales

    As usual Louis Stouch has made nonsensical claims that are very difficult to research due to the circle jerking of his Islamophobic colleagues who post and repost the same poorly researched lies thus saturating search engines with the same incorrect version of a story. Luckily a storm last night knocked out power to the university where I work so I have the time to “waste” debunking another one of his preposterous posts. In addition to the lies debunked above in other comments the statement that “Lars Hedegaard, head of the Free Press Society, was convicted of denigrating Islam for authoring a book critical of Islam’s Prophet Mohammed,” is false. You can read the real story at http://www.cphpost.dk/culture/.....acism.html. Hedegaard was convicted of racism for statements he made in an interview published in a blog. The conviction had nothing to do with his book or statements he made about the the Prophet. He was convicted for publicly claiming that “Girls in Muslim families are raped by their uncles, their cousins, or their fathers,” and “When a Muslim man rapes a woman, it is in his right to do so.” These statements would have been protected under Denmark’s free speech rights had they not been published. Like many European nations, Denmark has laws against racism. If I’m not mistaken these laws date from the post-Nazi era and were almost certainly promoted by the Allies. I am certainly an advocate of free speech but, after Hitler, Europe considers public advocacy of racism tantamount to yelling “Fire” in a crowded theater. While I do advocate free speech I would very much appreciate it if SPLC would stop wasting our time by allowing Lou (and/or) Louis Stouch to repeatedly post comments which, upon investigation, invariably prove to be racist and misleading.

  • Walt

    The Hudson Institute is a right-wing think tank funded by the RAND corporation and has such luminaries as Robert Bork, Alexander Haig, “Scooter” Libby, Pierre Dupont, Doug Feith and Richard Perle as trustees, fellows or advisers. Nina Shea is also a contributor to the National Review, was the former vice chair of the US Commission on International Religious Freedom (CIRF). CIRF is a quasi-governmental body with roots in the U.S. Evangelical movement that, according to one scholar, aims to “‘remoralize’ American foreign policy” and “overturn the established—that is, liberal—order” (quoted in Stephen Kent, Marburg Journal of Religion, January 2001). The commission was formerly headed by Elliott Abrams, a convicted (and pardoned) Reagan administration official who was a special assistant to President George W. Bush on Mideast affairs. Shea also directs the Center for Religious Freedom, a research outfit, and is long associated with the neoconservative-led Freedom House that she helped found in the mid-1980s under the original name of the Puebla Institute and is now part of the Hudson Institute.. She is the co-author of Silenced: How Apostasy & Blasphemy Codes are Choking Freedom Worldwide (Oxford University Press, 2011).

  • http://splcenter.org Robert Steinback

    In response to Louis Stouch:

    Nina Shea’s article is a misleading response to Amy Sullivan’s well-reasoned USA Today op-ed piece. Shea attempts to frame two isolated local events as indicative of a massive Sharia threat to American freedom, which makes about as much sense as tying a local mugging to the so-called Jewish-controlled international banking conspiracy. At no point during the case of the four Christian evangelists arrested at the 2010 Arab festival in Dearborn was Shariah offered as the rationale behind their arrests, nor did Shariah play any role in their trials. It wasn’t the first time American demonstrators have been improperly met with force for expressing their First Amendment rights (Kent State comes to mind) and it won’t be the last, but to use this as a basis for hyping a nonsensical conspiracy theory about Shariah (and, implicitly, the threat posed by Muslims in general) is irresponsible.

    Also, Terry Jones and Wayne Sapp were arrested and charged under a warrant filed by Wayne County prosecutors, not the City of Dearborn. Again, Shariah was never presented, either explicitly or implicitly, as a rationale behind their detention or their prosecution. Local authorities were worried — maybe with good reason, maybe not — about the potential for civil violence the pair’s appearance presented, and may well have overreacted as a result. That is a far cry from a threat of Shariah takeover.

    Shea is doing worse than comparing apples and oranges. She’s comparing apples to something that isn’t even edible.

    Robert Steinback
    Deputy Editor, Hatewatch blog
    Southern Poverty Law Center

  • Ruslan Amirkhanov

    “In September, after Muslim complaints, four Christians were prosecuted for breaching the peace by discussing Christianity at the 2010 Arab Festival, held in Dearborn’s public streets. Though they were acquitted of that charge, one, “apostate” from Islam Negeen Mayel, was convicted in a district court of failure to obey a police order when she refused to stop filming her other three co-religionists as they preached the Gospel. As police said in court, however, the filming was perfectly legal.”

    1. What does the charge have to do with Shariah? Nothing.

    2. Let’s see what both sides have to say about their preaching. Christian fundamentalists have been known to badger people and even straight out insult them on the streets, and then claim persecution.

    It is also possible that police simply overreacted to these situations because they wanted to prevent any potential incidents.

  • Louis Stouch

    You may or may not be interested in this article from the Hudson Institute on Sharia Law. It makes some legit points for consideration. Notably, it boils down to Free Speech, which is already being impacted in Europe.

    Threat of Sharia Should Be Taken Seriously

    June 16, 2011
    by Nina Shea

    If the central point of a recent USA Today op-ed on Sharia is any indication of most American opinion-makers’ knowledge of Islamic law, we are in a good deal of trouble.

    In “The Sharia myth sweeps America,” writer Amy Sullivan tries to deemphasize the role of Sharia in the Muslim world — and in Dearborn, Michigan.

    She writes, “Dearborn’s Muslims have not sought to see the city run in accordance with Sharia.” If that’s what she thinks, Ms. Sullivan must not pay much attention to the news. In September, after Muslim complaints, four Christians were prosecuted for breaching the peace by discussing Christianity at the 2010 Arab Festival, held in Dearborn’s public streets. Though they were acquitted of that charge, one, “apostate” from Islam Negeen Mayel, was convicted in a district court of failure to obey a police order when she refused to stop filming her other three co-religionists as they preached the Gospel. As police said in court, however, the filming was perfectly legal.

    Ms. Sullivan must also not know that in April, also in Dearborn, a court convicted and briefly jailed Koran-burning Florida pastors Terry Jones and Wayne Sapp — who sought to protest non-violently outside a mosque — for refusal to post a “peace” bond. The defense, backed by an ACLU amicus brief, argued that charging a demonstration fee based on the anticipated negative reaction to the message conveyed in the demonstration constitutes an unconstitutional prior restraint of free speech.

    Countries including Iran, Saudi Arabia, Pakistan, Sudan and Afghanistan routinely enforce elements of Sharia, including apostasy and blasphemy laws. Those found guilty of leaving or criticizing Islam are punished by imprisonment or fine, if they’re lucky — and by death if they’re not. As renowned Muslim reformer, the late Egyptian scholar Nasr Hamid Abu-Zayd, pointed out: “Having been at the receiving end of such allegations — and driven from my home in Egypt to exile in the Netherlands — I can state with conviction that charges of apostasy and blasphemy are key weapons in the fundamentalists’ arsenal, strategically employed to prevent reform of Muslim societies and instead confine the world’s Muslim population to a bleak, colorless prison of socio-cultural and political conformity.”

    The Organization of the Islamic Conference, the United Nations’ largest voting bloc, is in the midst of pushing for universal Islamic blasphemy rules and Europe has begun to comply, using hate-speech bans and public order and blasphemy laws. In Denmark in May, Lars Hedegaard, head of the Free Press Society, was convicted of denigrating Islam for authoring a book critical of Islam’s Prophet Mohammed.

    Writers like Ms. Sullivan, who implies GOP presidential hopefuls are engaging in “fear mongering” by publicly stating their opposition to Sharia in U.S. courts, do a disservice to their readers when they try for reasons of political correctness to minimize a very real threat to First Amendment freedoms. Discussion of Sharia is long overdue — and the GOP is right to be having it.

    Nina Shea is a Senior Fellow and Director of Hudson Institute’s Center for Religious Freedom.

  • Terry Washington

    To my mind, “Shariah” is the new bogeyman for the right wing- during the Bush Administration , it was the International Criminal Court, which we were solemnly told by swivel-eyed loons like John Bolton was going to engage in the “frivolous” or “politically motivated” lawsuits against American policymakers and peacekeepers. “North Korean judges” were going to persecute Americans( the fact that North Korea has neither signed or ratified the ICC covenant-and has showed ZERO interest in so doing- is presumably irrelevant). As to what constitutes a “frivolous” or “politically motivated ” lawsuit against American officials, repeated requests from me to the Wall Street Journal to so define it have gone unanswered( the only “politically motivated lawsuits” I can think of, are the attempted impeachments of Bill Clinton and Andrew Johnson-and these have NOTHING to do with the issues of war crimes far less the Court! No, “Shariah” is just the new bogeyman for conservatives!

  • Ruslan Amirkhanov

    “As long as the Supreme Court has six Catholics and three Jews, Sharia Law will never take over. But one day, this delicate balance put in place to overrule Roe vs. Wade, will be toppled and then all hell will break loose upon the land.”

    Highly unlikely. Supreme Court justices are appointed by the president for life(or until retirement), in case you were asleep in US government class back in high school. Also while they interpret the Constitution, they cannot change it outright.

  • BBJ

    No surprises. These folks are desperate to show some sort of massive take-over of shariah in the US courts–but it’s simply not happening.

  • The Prisoner

    As long as the Supreme Court has six Catholics and three Jews, Sharia Law will never take over. But one day, this delicate balance put in place to overrule Roe vs. Wade, will be toppled and then all hell will break loose upon the land.

  • Aron Levy

    Score one for the good guys (read: American judicial system as it stands).

    Aron