Update: The Oklahoma constitutional amendment prohibiting courts from “considering” Sharia law has, unsurprisingly, been struck down as unconstitutional.
Good thing, because Sharia Law was steadily creeping into our legal system.
And by “steadily creeping,” I mean that one judge, one time, maybe, possibly took Sharia Law into account in a moderately stupid way and immediately got reversed in a state other than Oklahoma.
THE NEW JERSEY CASE
Let’s be clear what that judge in that New Jersey case did.
What he did was deny a woman’s application for a restraining order against her ex-husband, in a decision that nowhere mentioned Sharia Law.
The woman had already obtained a divorce.
No, let’s back up.
Her husband obtained a divorce—by all accounts against the woman’s wishes. He tried to send her home to her parents, but she refused to go. He was never accused of committing any crimes after their separation, but he was charged and criminally prosecuted for physically abusing her during the pendency of the marriage.
The restraining order action was a separate domestic proceeding. In other words, the issue was whether to grant the restraining order—not whether the defendant would go to jail. Whether the defendant would go to jail was the subject matter of the separate criminal action.
To grant a restraining order in New Jersey, the judge had to find a predicate domestic violation. In this case, the judge found that the woman had proved various domestic violations, but not rape. He found no rape in part because the defendant, a recent immigrant to the U.S., believed that a man does not need permission to have sex with his own wife.
This isn’t as dumb as it sounds.
That came out wrong.
The guy’s belief was dumb.
But the judge’s treatment of the intent issue was not entirely off the rails.
Sexual crime statutes have different requisite intent requirements. Sometimes, the violation has to be “knowing,” sometimes it does not.
So the judge in this case was not off his rockers to consider the guy’s state of mind in deciding whether a restraining order was necessary. Remember this was not the rape prosecution. That was separate. This was the domestic restraining order hearing.
In any case, the predicate violation statute the court considered was not clear as to the intent requirement. The judge thought no restraining order was necessary, because the guy was not trying to break the law and now that he had been disabused of his misconceptions (by the criminal prosecution) and having divorced the woman, there was not likely to be any further problem.
Stated another way, the judge was convinced by evidence—not Sharia law—that the man did not pose a future danger to his ex-wife since he no longer wanted anything to do with her.
Though the judge did not mention Sharia in his decision, it is accepted as (gospel, natch) truth in some circles that the judge was influenced by the testimony of an imam. The imam testified for the defendant, but not as an expert on Sharia Law, rather as a percipient witness to the couple’s relationship. The imam had tried to help the couple reconcile (at the wife’s request, not the husband’s), was present at the separation, and the woman stayed in his home immediately following the separation.
It was only upon the judge’s instigation that the imam discussed Sharia Law. Solely in response to the judge’s questioning—not questioning by defense counsel—the imam confirmed that under Sharia Law, a wife must comply with her husband’s sexual demands, because the husband is prohibited from committing adultery. He also explained that a husband was forbidden to approach his wife “like any animal.” The imam could not or would not definitively answer whether, under Islamic law, a husband is allowed to proceed if his wife persists in refusing.
The imam, however (unlike the judge apparently), was clear that New Jersey law considers coerced sex between married people to be rape.
Let me just insert a little observation here.
What I see going on in this New Jersey decision has less to do with Sharia Law than with gender politics.
The decision is replete with references to the wife whining about her husband not spending enough time with her, not knowing how to cook, sitting around all day and not doing any housework while the husband was working, refusing to help out when he brought business guests home, breaking dishes and windows and throwing business papers around when she got angry. There was also some evidence from which a person could conclude that she only started alleging non-consensual sex after publicly announcing her intent to “destroy him” for divorcing her.
Maybe this judge believed this was one of those cases where the man had been falsely accused and was looking for a way to help the defendant.
Regardless, the more important point here is that the judgment was reversed in a comprehensive and stinging decision by the Court of Appeals.
Which just meant that the restraining order should have been issued.
And in the interim, nothing bad had happened to the woman.
For anyone needing a dose of perspective, the case can be found at S.D. v. M.J.R., 2 A.3d 412, 427 (N.J. Super. A.D. 2010).
A person would be hard pressed to worry about Sharia Law being implemented in the U.S. after reading this decision.
But back to those wicked smart Oklahomans. To address this totally dire (completely benign) situation in which we are being totally (not at all) overrun by Sharia Law, they passed their little amendment that says courts cannot “consider” foreign law, especially not Sharia Law.
WHY THE OKLAHOMA AMENDMENT IS DANGEROUS AND MISGUIDED
For the moment, ignore the problems with trying to pass a state constitutional amendment forbidding judges to consider foreign law. The problems are so massive that I literally feel as though I am choking on an ocean (probably the Arabian Sea) trying to explain it. So let us just focus on Sharia Law.
Here’s how U.S. courts have “considered” Sharia Law in the past:
Sometimes, eligibility to immigrate to the U.S. depends on marital status. A single person whose parents are here, for example, might be able to come join them—but not if he also has a spouse and children for whom he will provide an “anchor” to U.S. residence. So U.S. courts sometimes “consider” Sharia Law to determine if a couple was already married before they came to the U.S., and therefore lied on their applications, and therefore should be deported.
I guess Oklahoma no longer wants people deported for lying about their marital status, if determining they lied would require (gasp) “considering” Sharia Law to confirm marital status.
Also out are petitions for asylum based on persecution under Sharia Law. To grant the petition, the court would have to “consider” Sharia Law in order to determine whether the applicant really has a reason to fear persecution. I guess we should just deny all petitions for asylum based on persecutions under Sharia Law. Because we sure don’t want our own citizens to have to bear the psychological torture of having Sharia Law “considered” by our Courts.
Well played, Oklahoma. Well played.
Mothers can no longer introduce evidence of their ex-husband’s belief in Sharia Law to fight his request for partial custody or block his attempt to take the kids out of the country “on vacation.”
Small price to pay for keeping our judicial system untainted by consideration of “foreign” law, amiright?
What if they ever catch Yaser Said who shot his daughters in the back of a cab for dating non-Muslim boys? And the prosecution wants to introduce evidence about Sharia Law and honor killings in order to establish motive?
Luckily, those girls were killed in Texas where courts can still consider Sharia Law.
See. Here’s the thing. There’s never, ever been any danger whatsoever of Sharia Law being enforced in a way that is repugnant to our culture.
I don’t care what’s going on in Europe. The Europeans do lots of crazy stuff. I can’t get into it all here.
But we are not Europe. We are the United States. And It. Cannot. Happen. Here. I just do not know how strenuously I can explain this. U.S. Courts do not enforce contracts or laws that are contrary to our fundamental beliefs. They never have. They never will. It is a precept of our legal system.
We have what’s called the Rule of Law. Of our laws.
Incidentally, that’s why it doesn’t matter what Oklahomans were trying to do. It’s what they did do that matters. Because we are governed, not by good intentions, but by laws enforced as written.
Yes, there is this one kinda vague example where this one low-level judge maybe, sorta considered Muslim culture as a basis for denying a restraining order, with absolutely no adverse consequences to anyone, and then promptly got reversed in strongly-worded, comprehensive opinion completely and utterly repudiating any attempt to use cultural beliefs about marriage to escape liability for criminal behavior.
And to deal with this total non-problem, the wicked smart Oklahomans just screwed any woman who ever wants a family court to consider Sharia Law in deciding whether her ex-husband should be allowed to take their teenage daughter to Iran to meet his family.
Way to go, OK.