By Rabbi Jonathan Hausman:
Re: HB 895 – Foreign Law; prohibit the application of foreign law in Georgia courts; violations of rights guaranteed natural citizens by U.S. and Georgia Constitutions
Dear Congressman Hightower,
My name is Rabbi Jonathan Hausman. I have a BA in Judaic Studies, MA in International Affairs concentrating on the Middle East (both degrees from The George Washington University), JD from Emory University (licensed to practice in the State of Connecticut and Commonwealth of Pennsylvania), and my Rabbinic degree from Kollel Lomdei Torah of The Tifereth Israel Rabbinical Yeshiva. I spent a great deal of time living and studying in the Middle East having lived and worked in Israel and studied at The American University of Cairo. I read, speak and write Hebrew and Arabic, and am conversant in Jewish and Islamic sacralized texts and literature.
It has come to my attention that representatives of the Anti-Defamation League gave testimony opposing the aforementioned legislation SB 895 – Foreign Law; prohibit the application of foreign law in Georgia courts; violations of rights guaranteed natural citizens by U.S. and Georgia Constitutions
I write to you in response as one who possesses the unique skills to plumb the sources of two traditions (Judaism and Islam) along with the requisite legal training appertaining to US law and Constitutional governance.
Indeed, a comprehensive study was undertaken by the Center for Security Policy (CSP) in 2011 which uncovered the extent of the use of Sharia (Islamic Law) as the basis for legal decisions. 50 Appellate court cases from 23 States were reviewed in this study. Most of the cases referenced in this study involve Muslim women and children, who were asking American courts to preserve their rights to equal protection and due process in cases dealing with divorce and child custody. These families came to America for freedom from the discriminatory and cruel laws of Shariah. However, all 50 Appellate decisions dealt with the application of Sharia in contravention to the Constitutional guarantee of equal protection under the law.
The CSP study’s findings suggest that Sharia 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 Sharia law in U.S. state court cases; yet the Center for Security Policy found 50 significant cases just from the small sample of appellate published cases in 2011. The number of lower court decisions that did not result in appeals is not known as such cases are generally not reported.
With all due respect to the claims of the ADL that the aforementioned legislation’s supposed purpose is to counter the infiltration of our judicial and legal system by Sharia (Islamic) law while subsequently claiming that no Georgia court decision, or any other court decision, demonstrating an actual need for this legislation can be found is demonstrably incorrect.
Many have asserted with certainty that state court judges will always reject any foreign law, including Sharia law, when it conflicts with the Constitution or state public policy; once again, the Center’s study found 15 Trial Court cases, and 12 Appellate Court cases, where Sharia was found to be applicable in these particular instances. The facts are the facts: some judges are making decisions deferring to Sharia law even when those decisions conflict with Constitutional protections. The complete study is available at http://shariahinamericancourts.com/
Some have also claimed that such legislation is applicable to all religious law. So, for instance, the observant Jewish community regularly uses religious tribunals (Batei Din) to resolve all kinds of disputes, including divorce settlements, which often are the basis for civil court divorce decrees and orders. But this legislation would prevent a Jewish couple in Texas from voluntarily using a Bet Din to resolve their divorce settlement, and also would invalidate an out-of state divorce based on a Bet Din arbitration. This is incorrect.
There is a basic Rabbinic principle that has operated since roughly the year 226 CE. That principle is known asDina d’malchuta Dina, the law of the country is binding and, in certain cases, is to be preferred to Jewish law/Halacha. Rabbinical developments evidenced a practicality regarding dealing with and maintaining positive relationships with the governing non-Jewish civil society (e.g. Parthian and subsequent Sassanid Persian rulers of Babylonia) which surrounded the Jewish community. This extended to the Jewish communities of Europe and, subsequently, transplanted to the United States.
While it is true that Jews maintained their own courts in certain locales during certain historical periods whose decisions were enforced by the secular authorities, such Rabbinical court decisions always were set aside if there was a conflict with the society at large. As a member of the Rabbinate who engages frequently with many different issues regarding matters of personal status (marriage, divorce, property settlements, etc.), I can attest to one basic fact of legal life. If a Get (Jewish bill of divorce) is issued by a husband to a wife without a civil divorce, that couple is still married in every jurisdiction in this country. This is just one example amongst many.
Halacha/Jewish Law has this precept that one must be reconciled to changed circumstances regarding government, and that civil law is necessary for the functioning of the greater society. The result was an internal recognition of Judaism’s non-supercessionist and non-conversionary character. According to the Prophet Nehemiah, Jews should obey the laws of their rulers (Nehemiah 9:37). It extends to real property issues (after all, the government could/can confiscate property), common currency, taxes, recognition of administrative officers and documents and regulations issued by such authorities, as well as the appointed juridical positions within and outside of the Jewish community.
As for those issues dealing with personal piety (e.g. Kashruth, that is observance of the Jewish dietary rules), such only apply to Jews specifically and not to the world at large. There is nothing coercive vis a vis general society.
Sharia, on its face might be described as the religious code for living the moral system according to Islamic tradition; perhaps, in the same way the Bible would serve for Christians. The difference is quite stark, however.
Sharia refers both to the Islamic system of law and the totality of the Islamic way of life. It is immutable, perfect, unchangeable, static, and unchanging. Death penalty for apostasy, as well as homosexuality, adultery, freedom of speech issues when it comes to criticizing Islam or Muhammad or drawing satire cartoons, disfigurement for theft, depredations suffered by women (e.g. the increasing frequency of honor killings in the US protected under Shariah, female genital mutilation, child custody and absconding of minor children) and the irrelevancy of women’s testimony as well as lower percentage of inheritance and no rights regarding issues of child custody, plaintiffs exacting legal revenge (eye for an eye is taken literally), gambling, alcohol consumption all command exacting punishment under Sharia.
The only instance in the United States dealing with a criminal prosecution for female genital mutilation occurred in Georgia. Furthermore, there are known to be two cases of children of a marriage between a non-Muslim American mother and a Saudi Muslim father who absconded with the children because Sharia law dictates that custody resides solely with the Muslim father and male relatives.
The United States has a Constitution under which the government functions, and the Bill of Rights which protects basic human rights and freedom – rights derived from the Almighty according to the secular foundational documents of these United States – freedom of speech, freedom of worship, freedom of education and freedom to organize political parties. The pertinent question regarding Sharia is thus. Does Sharia, as a legal system act in consonance with the Constitutional legal principles so cherished by and supported by over two centuries of American case law or does it stand for a diminution of the rights of many segments of our population? If the latter, then legislation such as HB 895, The application of foreign law and foreign forum selection in certain family law proceedings certainly is one of the surest methods to protect the Constitutional rights of parties in family law matters under Georgia law and practice, as well as in front of the Georgia Judiciary.
Rabbi Jonathan H. Hausman
BA,MA, JD, Rabbinic Ordination
Ahavath Torah Congregation
Cc: Congressman Wendell Willard, Chair, GA House Judiciary Committee
Congressman David Ralston, Speaker, GA State House
Congressman Alex Atwood, Secretary, Public Safety and Homeland Security