Thu July 25, 2013
Lawmakers Push Ban On Islamic Law In Family Court
UPDATE: The North Carolina House concurred on the bill, sending it to Governor Pat McCrory for his signature.
For months now, Republican lawmakers in Raleigh have been pushing to ban North Carolina courts from enforcing “Islamic law,” or Shariah. Last week, the state Senate passed the latest bill with this aim. But, do courts really enforce Shariah, or any foreign laws, in their decisions? Where did this bill come from? And, what effect would the law have? WFAE's Ben Bradford takes a look.
State Senator Thom Goolsby points to a North Carolina lawsuit from last year as an example of why the law is necessary. A Muslim couple filed for divorce after 12 years of marriage, but the husband didn’t want to pay alimony.
“The man tried to get out of his commitments by claiming that she had previously been married under a Shariah law ceremony,” Goolsby says.
The woman had a brief, previous marriage followed by a divorce, but it was all done under Islamic customs and not through the state. If the marriage counted, she was a bigamist and the husband owed her nothing. The case, Mussa v. Palmer-Mussa, went all the way to the North Carolina Supreme Court, where the wife ultimately won. Goolsby says it never should have gotten that far.
“What the law attempts to do is make sure that women and children are protected from foreign laws that do not comport with our constitutional laws and basic constitutional rights,” he says.
The bill only applies to family court cases—that way it would not interfere with international business transactions, a concern of the North Carolina Bar Association, which opposed an earlier draft. The law also clearly targets Sharia, the Islamic code of conduct from the Quran and religious tradition.
But, neither Sharia nor any foreign law played a central role in Mussa v. Palmer-Mussa, according to attorney Matthew Leerberg, who represented the defendant.
“It did not,” Leerberg says. “Even though there were some questions of religious law, or perhaps Shariah law, that were bouncing around in the case, the case ultimately was decided on 50-year-old principles of North Carolina law.”
Leerberg says he’s not concerned that Sharia or any foreign law can take precedence over American rights.
“Something that violates the North Carolina constitution violates it regardless of whether this statute is passed,” he says. “Something that violates the United States constitution violates it regardless of whether the statute is passed.”
The supremacy clause of the Constitution supplies that no law or judge can render a decision that violates it, “anything in the constitution or laws of any state to the contrary notwithstanding.”
For that reason, the North Carolina Bar Association calls the legislation unnecessary. The American Bar Association has opposed similar bills in other states.
But proponents point to cases around the country, like Mussa v. Palmer-Mussa, where courts have considered Sharia in divorces, child custody or domestic violence cases. Leerberg says it is common to analyze a person’s religion and country of origin for context in a family law case.
“The principal risk of the bill is that it could be misinterpreted or misused to chill discussions of religion and religious law that tend to bounce around in these kinds of family law cases,” he says.
Constitutional lawyer and UNC law professor Michael Gerhardt says state laws also already offer protection against spousal abuse and other state crimes, and religion does not factor into it.
“There’s a general law in this state—it’s in every state—that prevents one citizen from violently abusing another citizen,” Gerhardt says. “There’s no question that the United States Supreme Court would uphold that law, regardless of what the religion happens to be of the people involved.”
Even if the law has no legal effect, Rose Hamid, president of the organization Muslim Women of the Carolinas, worries the North Carolina legislation would have another consequence.
“The only thing that it serves is to bring up this anti-Islamic ideology that says its okay to be anti-Islam and that Islam is not part of the American thread,” Hamid says.
Hamid’s fear has a base. The North Carolina bill comes from a national template written by a New York lawyer, David Yarushalmi who’s led a national, anti-Sharia push. Yarushalmi told the New York Times that Sharia is an “existential threat” to the American way of life.
By the Pew Research Center’s count, North Carolina’s is one of more than 70 similar bills, introduced in Congress and 32 states. At least 5 states have passed these types of bills.
Neither of the bill's primary sponsors in the North Carolina House, Representatives Chris Whitmire and George Cleveland, responded to requests for comment.