“Shariah Law and American Courts: An Assessment of State Appellate Court Cases,” published by the Center for Security Policy, is one of the most comprehensive studies I have ever seen. It covers more than 600 pages of material. The following summary statement is shocking:
Our findings suggest that Shariah law has entered into state court decisions, in conflict with the Constitution and state public policy. Some commentators have said there are no more than one or two cases of Shariah law in U.S. state court cases; yet we found 50 significant cases just from the small sample of appellate published cases. Others state with certainty that state court judges will always reject any foreign law, including Shariah law, when it conflicts with the Constitution or state public policy; yet we found 15 Trial Court cases, and 12 Appellate Court cases, where Shariah was found to be applicable in the case at bar. The facts are the facts: some judges are making decisions deferring to Shariah law even when those decisions conflict with Constitutional protections. This is a serious issue and should be a subject of public debate and engagement by policymakers.
Once these types of decisions made in American courts become part of published law they can be used as precedent law for future cases. Anyone entering an American court will be bound by decisions made by courts that appeal to these cases.
Law must be based on some transcendental standard. In the past, American law was a blending of biblical and natural law. The Supreme Court cases regarding polygamy demonstrate this fact. But with our new pluralistic attitudes, everything is up for grabs. And because we are trying to accommodate Islam so radicals won’t blow us up, Sharia law is becoming accepted as one legitimate law among many.
This does not mean that Sharia law is the only law the courts are using. International law is the new legal kid on the block. Of course, this would include Sharia. Consider Ruth Bader Ginsburg’s judicial philosophy:
Justice Ruth Bader Ginsburg is acknowledging the growing effect of international law on Supreme Court decisions, particularly in the areas of the death penalty, race admissions and gay sex: “Our island or lone ranger mentality is beginning to change,” Ginsburg said during a speech to the American Constitution Society, a liberal lawyers group holding its first convention. Justices “are becoming more open to comparative and international law perspectives,” said Ginsburg, who has supported a more global view of judicial decision making. Ginsburg cited an international treaty in her vote . . . to uphold the use of race in college admissions.
What makes today’s use of international law attractive to so many judges? Referencing international law gives the appearance of judicial legitimacy. It’s a poor judge’s version of “higher law” which in reality is nothing more than “horizontal law.” One nation appealing to the judicial decisions of another nation is little different from Hugh Hefner asking Larry Flynt what he thinks about pornography.
An Emory University Law School publication noted that the Malak v. Malak case, which involved a Lebanese court decision, was cited as precedent in other Muslim child custody cases.
Atlas Shrugs publisher and Islam analyst Pamela Geller says that Islamic law cited as the basis for any American court decision shows that the American legal system is turning a dangerous corner.
“It is setting a very dangerous precedent. Shariah law and U.S. law conflict in numerous ways, including on issues of freedom of speech, freedom of conscience, and equality of rights for women. Allowing Shariah to be a determining factor in U.S. courtrooms threatens those rights for all of us,” Geller said.