Setting the Record Straight on American Laws for American Courts Legislation
by REP. PEGGY MAST
July 11, 2012
Recently my American Laws for American Courts legislation that Governor Brownback signed into law in May has come under unfounded criticism and fraudulent attacks from poorly researched articles that have contained numerous inaccuracies.
Critics have mischaracterized the law we passed in Kansas to protect the individual constitutional rights of our citizens against foreign laws and foreign legal doctrines to such an extent that I am left wondering whether these critics have actually read the law they have been attacking.
In particular, some incorrectly tie our new American Laws for American Courts law in Kansas to the infamous and counterproductive anti-Shariah constitutional amendment passed in Oklahoma back in 2010, which has been struck down in federal court.
My bill was closely modeled on the model "American Laws for American Courts" legislation promoted by the American Public Policy Alliance (APPA) (http://publicpolicyalliance.org/?page_id=38).
Unlike the Oklahoma amendment, this legislation has never been challenged in court since being signed into law more than two years ago in Louisiana and Tennessee and is, as APPA legal scholar Stephen Gele says, "perfectly constitutional."
For instance, Chicago Tribune columnist Steve Chapman's research was so sloppy that he completely mischaracterized American Laws for American Courts as forbidding "courts from applying Islamic Shariah law in any case."
This is simply wrong.
Other critics have also stated that American Laws for American Courts prohibits state courts from basing decisions on any foreign laws or other legal codes.
Once again, this is simply wrong.
One of the particular critics of ALAC lists as one of his accomplishments: "obtaining the dismissal of a lawsuit filed in the US in favor of a parallel proceeding in Germany." He was actually fighting on behalf of foreign jurisdiction when the foreign jurisdiction would not guarantee US constitutional rights. How objective is that?
It is true that American Laws for American Courts was crafted to protect Americans' constitutional rights against the infiltration of foreign law. As such it is NOT a blanket ban on any foreign law or foreign legal doctrine, including Shariah.
American Laws for American Courts protects Americans from the application of foreign laws when the application of a foreign law would result in the violation of a right guaranteed by the constitution of the state or of the United States, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of the state.
There is no mention of Shariah in the legislation simply because the legislation was not designed to target Shariah.
So why are Muslim Brotherhood front groups such as HAMAS-tied CAIR and the Islamic Circle of North America (ICNA) so vehemently opposed to American Laws for American Courts?
Because they know that out of all the foreign laws and foreign legal doctrines that have shown up in US court cases, legal systems based on Shariah are the ones which most commonly run afoul of US constitutional rights. Now that states are taking action to prevent these occurrences, pro-Shariah forces are howling mad.
But they can't challenge American Laws for American Courts in court because all the law does is reinforce US constitutional rights. What could be unconstitutional about that?
This brings us to another point that the critics have failed to uncover: Shariah law can and has appeared in court cases in the United States-and has even been upheld by activist judges in US state courts in clear violation of individual constitutional rights.
Last year, the Center for Security Policy conducted a preliminary survey of state court cases in which one or both parties to a dispute attempted to invoke Shariah law. The Center published the results in a study entitled Shariah Law and American State Courts.
The study details 50 sample cases in which parties invoked Shariah, including 15 trial court cases and 12 appellate court cases in which Shariah was actually applied. Importantly, frequently, Shariah manifested itself not as Shariah, but as Pakistani law, Saudi law, Egyptian law or some other foreign law that is based on Shariah.
For instance, this is exactly what happened when a Maryland appeals court disregarded the "best interests of the child" standard and awarded custody of a child to an abusive husband based on a Pakistani court order in Hosain v. Malik.
One of the most dramatic revelations during the process to pass my American Laws for American Courts bill in Kansas was the discovery that a current case before a Kansas court involved a husband who was seeking to divorce his wife based on a Lebanese Shariah law marriage agreement.
The reason American Laws for American Courts legislation is needed is because in most states there is no statute that articulates public policy on the issue of foreign laws in state courts. Up to now, judges have been left to "make law" in these cases. It is the proper role of the legislative branch to set public policy in such cases, which is what American Laws for American Courts has now accomplished in Kansas.
Representative Peggy Mast is a Republican member of the Kansas House of Representatives, representing the 76th district. She has served since 1997 and is currently the Assistant Majority Leader.