Report Aiming to Prove 'Creeping Shariah' Theory Proves the Opposite

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.”