Proposed state law draws religious criticism
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A proposed Pennsylvania law to ban courts from considering any "foreign legal code or system" that doesn't grant the same basic rights as the federal and state constitutions was drafted by an anti-Islam activist but is drawing fire from some Jews.
They believe House Bill 2029 could compromise the divorce cases of Orthodox Jews and religious matters that end up in civil court. To examine this, Deborah Fidel, executive director of the Pittsburgh Area Jewish Committee, organized a forum for 7 p.m. today at Rodef Shalom Congregation, Shadyside.
Scholars of Jewish, Islamic and Catholic law will discuss how their religious codes interact with civil courts.
The bill doesn't use the word "sharia" or Islamic law, as some versions in other states did, but it's the same movement, she said.
"In a rush to villainize Muslims, the people backing these bills aren't thinking through the ramifications," she said.
But the bill's critics don't agree with its proponents or each other on what it aims to do.
Its principal sponsor, state Rep. RoseMarie Swanger, R-Lebanon, said it would have limited application, primarily to protect women and children in custody cases. It exempts corporate and business contracts.
"I have read about some other states where foreign law has been creeping into the courts, especially family courts," she said. "I'm thinking of the Near East, where women are not highly regarded and don't have the same rights as men. If those women come here, I want them to have the same rights that we have."
She said the law only would apply if the foreign law denied constitutional rights at stake in the case. It wouldn't stop courts from otherwise considering religious rulings, she said.
That's not clear to Howard Friedman, emeritus professor of law at the University of Toledo whose blog, The Religion Clause, tracks freedom of religion issues.
"When the statute talks about not using another code that denies the rights and privileges granted under the United States Constitution, it's not clear whether that means that it somehow has to be related to this dispute," he said.
"If you read this literally, as long as there is anything that would be contrary to the constitution ... that [law] can't be considered. You've got a statute that probably has a lot of unintended consequences."
Opponents of the law say that American jurisprudence already forbids denying constitutional rights in favor of another code. One thing that all sides agree on is that religious law is sometimes at issue in civil courts.
Haider Ala Hamoudi, an assistant professor of law at the University of Pittsburgh and an expert on Islamic law, has worked on immigration cases where a judge must determine marital status based on religious law. He believes the bill prohibits any consideration of such law, and said women and children would be hurt by that.
He cited a woman married in India. Her husband obtained a sharia divorce under Muslim law and disappeared with another woman. The ex-wife then married a Marine and they moved to Pennsylvania, where she applied for citizenship through marriage.
"She had to show that she was not already married at the time she married the Marine. How could she do that without mentioning sharia?" he said.
Rabbi Scott Aaron, community scholar at the Agency for Jewish Learning in Squirrel Hill, said Orthodox Judaism doesn't recognize civil divorce, and women can't apply for a religious one. Their civil divorce settlements may require the husband to obtain a religious divorce. If he doesn't, the civil court sorts it out, he said.
Other cases, from state regulation of kosher food supervision to disputes over autopsies, often bring Jewish law into civil courts, he said.
There's disagreement over whether the bill could cause problems for Catholic canon law. In Alaska, where a similar law was proposed, the Catholic bishops said it could wreak havoc if a bishop closed a church and parishioners sued to keep it.
Theoretically that shouldn't happen, said the Rev. Lawrence DiNardo, vicar for canonical services in the Diocese of Pittsburgh and a former president of the Canon Law Society of America. Canon law differs from Jewish and Islamic law because it's an internal system, with no civil implications, he said.
In property litigation, the case would be based on a civil trust, not canon law, he said. No one can apply for a Catholic annulment without first obtaining a civil divorce.
Nevertheless, he thinks the bill is a threat.
"I believe that a law like this has the potential of restricting people's religious freedom and their exercise of faith," he said.
Rabbi Aaron agreed.
"When we start restraining access or even wisdom from [religious] legal systems, we are playing with fire constitutionally. We are really violating the basic tenets of what it means to be Americans. Jews, of all people, know that these things start with one community and it works its way out to others," he said.
The Becket Fund for Religious Liberty, which represents people of all faiths, hasn't litigated the issue but is concerned about similar bills proposed in two dozen states last year.
"We are concerned that if enacted, such a law might make it impossible, for example, for Orthodox Jewish courts to function. ... Since arbitration by religious tribunals of all faiths has gone on for decades in this country, it is unclear what problem these bills are trying to solve," said Eric Rassbach, deputy director at Becket.
The state bills are based on a model from the American Public Policy Alliance. Stephen Gele, an attorney and spokesman for the group, said it wouldn't prevent recognition of religious divorce unless that divorce violated fundamental American rights.
The model was drafted by anti-sharia activist David Yerushalmi, a New York attorney who presents use of sharia in the United States as a trojan horse intended to pave the way for a violent Islamic takeover. He's Jewish, but the Jewish Anti-Defamation League has castigated his work, citing a "record of anti-Muslim, anti-immigrant and anti-black bigotry."
Mr. Gele said the bill should be judged on its merits, not on opinions about its author.
It "isn't meant to prevent the practice of Islam as a religion," he said.
The disagreement over what the law will do shows that "the bill is a hodgepodge of poorly conceived words," said Gadeir Abbas, staff attorney with the Council on American Islamic Relations in Washington, D.C.
"The real purpose of this bill is to provide a forum for Islamophobic bigots to come to the state assembly hearing and say nasty things about Muslims."
In Alaska, prominent anti-Islam activists Pamela Geller and Robert Spencer testified at the hearing. Ms. Geller criticized stores that allowed Muslim cashiers to change jobs so they wouldn't have to handle pork and cases in which Muslim workers filed successful complaints seeking prayer breaks.
"These actions are merely devices in which to impose Islam on nonbelievers," she said.
Mr. Gele cites about 50 cases in which courts upheld sharia in family disputes to the detriment of women, though most were reversed on appeal. Among those overturned was a New Jersey case in which a husband beat and raped his pregnant wife, but the trial judge denied her a restraining order on the grounds that it would violate his religious rights under Moroccan sharia.
A Maryland custody case upheld by the appellate court concerned a Pakistani wife and mother who fled to America with their 7-year-old daughter. When her husband found them several years later she refused to appear in Pakistani family court, citing fear of execution.
The Maryland appellate court voted 6-2 to uphold a Pakistani verdict giving custody to the father.
"That little girl was sent back to Pakistan. The courts did not do the right thing," Mr. Gele said.
But Mr. Hamoudi said the custody case didn't place sharia law above U.S. law. It held that the Pakistani court used the same "best interest of the child" standard that American courts do.
"They found nothing against Maryland policy in the [Pakistani] decision, which granted custody to the father against a mother who effectively kidnapped the child," he said.
The proposed law isn't needed because "American courts do not enforce judgements based on foreign law, whether that's sharia-driven or otherwise, if those judgments do not comport with American standards of fairness," Mr. Hamoudi said.
The other cases were overturned because "judges do make mistakes, which is why we have appeals," he said.
But Mr. Gele said mistakes show a need for a law, because many victims can't afford to appeal.
The medieval scholars who codified sharia minimized the possibility of draconian penalties, Mr. Hamoudi said. To convict someone of adultery required four eye-witnesses to the precise act of penetration.
"The general view by modern Muslims has been that it is very difficult to enforce any of this Islamic criminal punishment and that the classical authorities really didn't intend them to be carried out because they created such stringent evidentiary rules," Mr. Hamoudi said.
Some modern Islamic movements in Iran and elsewhere have enacted the penalties in an ideological reaction against western influence, he said. Cutting off hands of embezzlers is "more a matter of identity politics than of application of the law," he said.
He believes identity politics also drives these bills.
"There is an intolerance of members of the community who happen to adhere to the Islamic faith," he said.
First Published December 12, 2011 12:00 am