The Boogey Man Critique:
The Boogey Man critique suggests a rather straight-forward empirical question in that it suggests that Question 755 is a response driven by an irrational fear (i.e., “Islamophobia”) of a threat that doesn’t exist in this country. We answer it accordingly.
First, the global jihad leadership against which we have aligned most of our military and intelligence resources since 9/11 informs us in Arabic, Pashtu, Urdu, Persian, and even in English that the global jihad against the West is fundamentally directed and determined by Islamic law, or sharia.
The jihad leaders further tell us that their ultimate goal, in addition to that of the “defensive jihad” incumbent on every Muslim to rid the Islamic world of an occupying infidel presence (including, but only parenthetically so, those nasty Zionists residing in the midst of dar al-Islam), is the implementation of sharia law as the law of the land in any place Muslims step foot. This sharia hegemony is to be achieved through an offensive jihad. This offensive jihad, while not incumbent on every Muslim, is incumbent upon the Caliph or Islamic leaders of the day in the obligatory effort to spread Islam through dawa (i.e., the pre-violent “call to Islam”). Islamic law makes clear that if the “call” to the infidels goes unheeded, jihad or kinetic war is a legal obligation falling upon the Muslim nation as a collective (i.e., the ummah), thereby exempting the infirm and less than enthusiastic when there are sufficient sharia-faithful combatants to wage this battle effectively. Besides, the law provides other means and methods for the individual to aid the offensive jihad, such as charitable financial contributions (what we term in federal criminal law as material support of terrorism).
Moreover, this “doctrine” espoused by the jihad leadership is not some perverse or perverted sharia doctrine rejected by the vast majority of the world’s Muslims. A quick look out into the real world informs us that this sharia-driven jihad doctrine is sufficiently “orthodox” and includes sufficient followers that the defense against the global jihad takes on mammoth proportions. Thus, surveys in the Muslim world consistently evidence that somewhere between 50% to 70% of the global Muslim community desires to create a unified Caliphate for all Muslims and to order that political hegemony according to a strict al Qaeda-like sharia.
From the World Opinion Survey, Univ. of Maryland, April 2007, at pp. 21-22; “Full Report” and “Questionnaire” available for download here.
Keep in mind that Indonesians, occupying the most populous Muslim dominated country with approximately 230 million Muslims, are typically held up for display as the quintessential example of Islamic practitioners of “moderation” and “multi-culturalism.” Yet, we see that a majority in this country would actually opt for al Qaeda’s “strict sharia” as the law for every Muslim country. This is not some peaceful “sharia,” but al Qaeda’s “strict sharia.” Indeed, the global view of Muslims on all of the relevant issues driving the global jihad is no less disconcerting:
Id. at p. 15.
So, the Boogey Man does exist, at least for the enemy combatant mujahideen across the globe, including those here in the Homeland operating as “lone wolves” or in “sleeper cells.” And, if we extrapolate from the World Public Opinion survey cited above, the Boogey Man is quite alive and well for 600 to 840 million of the estimated 1.2 billion Muslims worldwide, the vast majority of which live in Muslim countries. This suggests, of course, that their more assimilated brethren living in the West are of little import to “mainstream” Muslim views of sharia and jihad. Indeed, Muslims living in the West who view Islam as a kind of westernized and tolerant religion which adheres to the political doctrine of the “Separation of Church and State” can be said to have “perverted” and “distorted” mainstream Islam, or, at best, to be occupying a minority view of what “true Islam” demands.
But the proponent of the Boogey Man critique might in fact accept these brute facts about the “true” or “majority” Islam and still argue that sharia poses no threat to Oklahomans and their way of life. At this point, the Boogey Man argument morphs into the following declaration: even assuming sharia is al Qaeda-like in the Muslim world, there is simply no practical threat that Oklahomans or the electorate in any other state would vote to accept sharia as the “law of the land.”
But this argument is trite because it assumes the only way sharia can find its way into our legal system is through the vote. This is of course false. Specifically, there are at least three ways for sharia to find its way into our courts and legal system in ways which would deprive Oklahomans of their federal and state constitutional liberties: comity, choice of law issues, and choice of forum/venue determinations. We will touch upon each of these in brief.
Comity. State courts are asked to recognize and enforce foreign judgments and private arbitral awards all of the time. This procedure for recognizing another juridical body’s decision as binding is called granting comity to the foreign judgment. For our purposes, a private arbitral award is like a foreign judgment because it does not arise from a state court action.
Granting comity to a foreign judgment is mostly a matter of state law. And, almost all state and federal courts will grant comity unless the recognition of the foreign judgment would violate some important public policy of the state. This doctrine is called the Void As Against Public Policy Rule and has a long and pedigreed history. Indeed, even where preemptive federal laws (i.e., the Federal Arbitration Act) and treaties (i.e., Convention on the Recognition and Enforcement of Foreign Arbitral Awards) require courts to honor binding arbitration awards, whether domestic or foreign, the treaties and federal laws all include some provision granting the domestic court an out if the recognition would violate the public policy of the state.
Similarly, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), enacted in some form by most states, also incorporates a kind of Void As Against Public Policy Rule within the calculus of granting a foreign child custody order comity. Specifically, the UCCJEA precludes comity when “the child custody law of a foreign jurisdiction violates fundamental principles of human rights.”
It is hard to imagine how a law, the very purpose of which is the destruction of Western law, and the processes of which include systemic and endemic discrimination against women and non-Muslims, would not a priori be void as against public policy. Unfortunately, because state legislatures have not been explicit about what their public policy is relative to sharia, the courts and the parties litigating in those courts are left to their own devices to first know what sharia is, and second, to understand that granting a sharia judgment comity is ipso facto offensive to our way of life and the principles underlying our constitutional republic.
And, indeed empirically, we find published judicial opinions which accept comity for sharia-based foreign judgments and arbitral awards. And these published judicial opinions quite obviously only represent the tip of the iceberg since courts render these kinds of judgments all of the time through unpublished orders rather than published opinions.
While there are also published opinions where the courts have rejected the application for comity precisely on the grounds that sharia is offensive to Due Process and Equal Protection, the courts have ended up all over the map precisely because the state legislatures have not taken the time to carefully articulate their respective public policies on the recognition of sharia-based judgments. That the people of Oklahoma have chosen to do so, even if clumsily, is hardly grounds for criticism.
In fact, the common law Void As Against Public Policy Rule makes clear that courts should be the last resort for defining and determining what is or is not the public policy of the state. Almost all state and federal courts recognize that it is first and foremost the duty of the legislature to carefully define and articulate that which the courts should void on public policy grounds. Leaving the public policy vague and therefore subjecting it to the vagaries of individual judges is risking more than just a “private” mistake. Recall that once a party obtains a sharia-based foreign judgment or arbitral award, the winning party typically walks into the state court and seeks to invoke the heavy hand of the police power of the state to enforce that judgment or arbitral award. Is the state prepared to justify the use of its police power to enforce a sharia judgment based upon a law which seeks our destruction as a free and self-represented people and which discriminates against women and non-Muslims?
Choice of Law. A second avenue where we have observed the application of sharia in state courts is under the choice of law doctrine. The choice of law doctrine applies in one of two cases. One in contract and one in tort. In contract law, the parties are free to decide which jurisdiction’s law governs. In state courts, this typically arises when one party is from a different state in the Union. But it is also the case that disputes between a domestic party and a foreign party can end up in state court where the dispute arises from a contract which requires the application of a foreign law. Again, given our respect of private property and the freedom to contract, state and federal law permits these kinds of “choice of law provisions.”
But what happens when the parties have chosen a law that is inherently offensive to the state and federal public policy because the chosen law if applied in the U.S. would violate fundamental constitutional liberties and privileges? One answer is that parties should be free to waive their constitutional rights if they so choose. Indeed, even criminal defendants may knowingly and freely waive their rights.
The waiver argument, however, relies specifically on a knowing and fully volitional waiver. Moreover, there are some rights that simply may not be waived. For example, we don’t allow a criminal defendant to waive his right to be free from cruel and unusual punishments. Further, we don’t allow the criminal defendant to waive a criminal judicial proceeding. Even a guilty plea must be presented to a judge who has a constitutional obligation to be certain that the plea was entered knowingly and freely.
Finally, this is not merely a “private” choice as we pointed out above. Once the court applies the foreign law, the winner of the litigation is able to then apply to the police power of the state to enforce that judgment. The question remains: ought the state allow the police power to enforce a judgment based upon a law that is intrinsically offensive to our way of life and our state and federal constitutions? While the hard core libertarian might opt for sharia law being applied in these cases, the choice by Oklahomans to reject sharia is most certainly rational and justifiable and is in line with most common law applications of the Void As Against Public Policy Rule.
The choice of law doctrine also finds its way into state courts if the underlying tort or injurious event occurred in a foreign jurisdiction. Thus, there are reported cases where a U.S. citizen goes abroad, is injured, returns home, and then sues the defendant in state or federal court. If the injurious event, the witnesses, and the evidence are all situated in the foreign jurisdiction, the choice of law doctrine will, in most cases, result in the domestic court applying the foreign jurisdiction’s law to the case. In this instance, the “choice of law” is hardly knowing or volitional. The state’s determination that it is the public policy of the state in those cases to apply state law and not sharia’s inherently offensive laws is once again quite rational and justifiable.
Forum/Venue Determinations. The final avenue for sharia to insinuate its way into our courts and legal system is through the various determinations relating to where the litigation will take place. Thus, as in choice of law, parties to a contract might freely choose to agree that all disputes will be litigated in Saudi Arabia, which applies sharia as the law of the land. But, as in the choice of law analysis, what kind of determination might we require before a party could be said to have knowingly and freely waived a fundamental constitutional liberty which is absent in Saudi Arabia? Arguably, the case of two parties agreeing to litigate in a sharia jurisdiction is less problematic because in and of itself it does not touch the state court system, at least not until one of the parties regrets that provision and seeks to void the choice of venue provision in the contract and litigate in the U.S.
But what of the non-contractual forum determinations? For example, in one case, a woman visited her parents in Saudi Arabia and while at the local resort, broke her neck and became a tetraplegic. After coming to Massachusetts for treatment in the U.S., the poor woman sued the Saudi company in a Massachusetts state court. Not surprisingly, the Saudi company moved to dismiss the case based upon the common law doctrine of forum non conveniens, which means that Massachusetts would be an inconvenient forum. When the injurious event, all of the evidence, and the witnesses are in a foreign forum, the forum non conveniens doctrine holds that the domestic court ought to dismiss the case and allow it to proceed in the foreign forum.
Thankfully, this particular court took a look at the fact that sharia discriminates against women and non-Muslims, together with other infirmities of Saudi law, and denied the motion to dismiss. The woman presumable got her day in a just and constitutionally compliant Massachusetts court, something that would not have been available to her in Saudi Arabia under sharia. But for every case where the court went the extra mile to guard against the abuses of sharia, there are myriad cases where the court abdicated its obligation to engage in a serious investigation of sharia and turned its back on this argument.
Thus, after a careful analysis, we are able to say with confidence that the Boogey Man of sharia does exist both as an extrinsic threat to our existence via jihad and as a domestic stealthy threat through its insinuation into our courts and legal system. But, as we’ve also come to understand, state legislatures need not acquiesce to this stealthy application of sharia in domestic courts because our law has built within it a mechanism to allow state legislatures to determine that any foreign law like sharia that is inherently offensive to our Constitution, and indeed hostile to our very way of life, is void as a matter of public policy.