Court Under Fire For Upholding Application of Islamic Law in Florida Court

The 2nd District Court of Appeal in Lakeland, Florida is under fire after upholding the use of Islamic law by Hillsborough County Circuit Judge Richard A. Nielsen. The uproar has reignited the national controversy over the perceived threat of Sharia law to the United States.

I have long been a critic of Sharia law in other countries and I am a staunch believer in the separation of church and state. However, the current movement to ban the reliance on Sharia law in the United States is nothing short of hysteria.

It is true that Judge Nielson applied Islamic law to resolve a dispute over the authority to spend money at a mosque. However, he was not supplanting state law with Sharia law. To the contrary, state contract law required him to enforce the prior agreement of the parties, which stated that they would be bound by Islamic law.

The dispute centered on the Islamic Education Center of Tampa and its move to expel four founding members. There was a disagreement over how to spend $2.5 million that the mosque received from Florida’s Turnpike Enterprise in exchange for 3.4 acres needed to widen a highway.

The use of religious law in such disputes is not unique. For many decades, New York has an extensive network of Jewish courts that would at times lead to legal disputes in the state and federal courts. While applying religious codes, these are cases that turn on primarily contractual and not religious law.

Source: Tampa Tribune

39 thoughts on “Court Under Fire For Upholding Application of Islamic Law in Florida Court”

  1. @AY – “or some folks might like the cerebus….who knows…”

    Mom always said two heads are better than one, but three might be overkill…

  2. Up in Canada a provincial court judge has said that four is a good number of spouses for a person to have simultaneously. At the same time he stated that NO person had the right to NOT become the spouse of a person who already has a spouse. The courts there will unilaterally proclaim a person to have multiple legally recognized spouses, even without the parties consent.The province is Saskatchewan in Canada. Sharia is north and coming soon.

  3. mespo,

    Since there are those of us who will be able to do nothing more than sign our names to our Blue Book, hopefully you will be satisfying our desire to learn by giving the answer … after everybody else has turned in their books of course.

  4. I find the most surprising — and delightfully refreshing — thing about this reasoned discourse is . . .

    that it is a reasoned discourse.

  5. Mike Spindell 1, October 27, 2011 at 10:29 am

    I think it reasonable to use Sharia Law in this given instance, but using Sharia law or Judaic Law can be fraught with problems. In both religions there are major sects, each having become so because of disputes over the interpretation of their laws. In both cases their is no governing authority recognized by each sect. Resolving an issue of religious law dispute between sects could be a nighare for an American court.
    ================================
    Good point.

    I too think that would be illegal and a nightmare as you say.

    The churches, in this context, are considered sovereigns and can and do have their own ecclesiastical courts (see also).

    The Supreme Court long ago held:

    In this country, the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all.

    The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned.

    All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent, and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.”

    Kedroff v. Saint Nicholas Cathedral, 344 U. S. 94, 114 (1952).

  6. Mespo,

    Kids win….You can never waive child support…In this situation…I believe that the court would find this provision as unconscionable and sever its applicability…Interesting that you bring that up….in areas where Muslims are prevalent that a Mahr is met….

    Mahr

    An integral part of an Islamic marriage contract, a mahr is a gift from the husband to the wife. Most commonly this gift is money, but can also be property, possessions, or, in some cases, service to be performed — such as teaching the faith or providing labor for a specified time. The mahr, once given, becomes the solely the wife’s property, and with this ownership comes the admission that the wife is independent.

    The price of the mahr is actually not set, but is supposed to be given according to the husband’s means. So, the mahr can be a nominal amount or range into the millions of dollars.

    Richard Freeland, in an article for the Gonzaga Journal of International Law, notes that “U.S. courts treat mahr as part of an ante-nuptial agreement.” This means that the mahr must meet the requirements for an ante-nuptial agreement in order to be enforceable in the U.S. Generally, an ante-nuptial agreement must be entered into voluntarily by both the husband and wife, plus, it is generally required that there is a full disclosure of finances by both parties. In addition, each jurisdiction may have its own specific requirements for ante-nuptial agreements. If all requirements are met, the court may declare a mahr enforceable.

    http://www.gonzagajil.org/content/view/85/26/

  7. Here’s a fun one for those advocatng the use of Sharia law. Husband and wife enter into a marriage agreement in the U.S. agreeing in their “choice of law” provision to use Sharia law to interpret the contract. Husband wants to divorce and seeks to require the Wife, under the terms of the marriage agreement, to raise the children at a prescribed home and and not to seek employment. (Such a provision is allowed under Sharia law). Wife needs to work to supplement the support paid to her for the children and wants that portion of the contract voided under US law. Husband won’t budge or pay more as his payment meets the suport guidelines. Which law applies and why? Who wins?

    Get out your “Blue Books” and have at it.

  8. I think it reasonable to use Sharia Law in this given instance, but using Sharia law or Judaic Law can be fraught with problems. In both religions there are major sects, each having become so because of disputes over the interpretation of their laws. In both cases their is no governing authority recognized by each sect. Resolving an issue of religious law dispute between sects could be a nighare for an American court.

  9. Jill,

    I agree with your assessment…I will add to this that the court may be bound to honor the contract, so long as it is not repugnant to the the law of the situs or unconscionable…

    I think the lead case establishing and defining the role of the court is Burger King…There was flip flop but the holding was as it was in the Florida District Court

    “Burger King brought a diversity suit against Rudzewicz in the Southern District of Florida. Rudzewicz and MacShara moved to dismiss on the grounds that the court did not have personal jurisdiction over them because they did not have sufficient minimum contacts with the state. The court denied Rudzewicz motion and ruled that jurisdiction was proper under Florida’s long arm statute. The court entered judgment in favor of Burger King and Rudzewicz appealed.”

  10. If the contract contained an unconscionable clause, one that could not be enforced under secular law, then it should not be enforced. Otherwise, if the parties agreed to it, isn’t it normal to enforce the agreement, even if it appears bizarre? As long as secular law always enforces the rights enumerated by secular law, isn’t that the test of what may be enforced? For example, if a husband says he had a right to beat his wife under religious laws, the state has a duty to throw the bastard in jail. In this case, it doesn’t appear that the contract violated secular tenants of law.

    I defer to the lawyers here but that is what comes to mind when I read about things like this. That, and the fact that there’s little reason to worry about sharia law when our entire nation isn’t a nation of laws any longer.

  11. Dredd,

    Sometime folks get so held up in the hyperbole of fear mongering that rationality takes a vacation…..

  12. The contracting parties wanted to apply the law that their contract specified, the law they agreed to in those premises.

    That the court, as they had agreed, applied religion based precepts about money at a mosque, seems to be the crux of the matter.

    The state court process seems no different than what federal courts do in contract matters, applying the law of a state both parties agreed to in the contract.

    State law can vary radically, and federal law can vary radically from Circuit to circuit, so choosing a particular body of law to apply that fits a particular circumstance does not seem odd at all.

    After all, our framers chose the law of our sworn enemy, the common law of England, and put it into our Seventh Amendment, making our enemy’s law our law.

    I dare say that there are scenarios where certain sections of Sharia law would not be considered as alien as the law of some U.S. jurisdictions or the laws of some of our ally nations.

    Our own law has led to an alien situation (1% – 99%) that is doing great damage to our nation.

    It is bizarre to be paranoid about any particular law until that law is read, printed, and understood.

  13. raff,

    How is this crap….47 States or there about recognize some form of foreign Judgment…..

  14. That is it nal…thanks…I was trying to remember how to spell it…and just said what the hell…

  15. “To the contrary, state contract law required him to enforce the prior agreement of the parties, which stated that they would be bound by Islamic law.”

    ***************
    There are many folks that have a Get performed and enforced what is equability a divorce….Though a typical “get” is short and they abide by the local courts there are some that want the rabbi to pretty much mediate the whole thing…and then enforcement becomes the issue….

    There is also the consideration of the Uniform Enforcement of Foreign Judgment Act which forces a court of local jurisdiction to respect Foreign Judgments…

    The ugly cerebus raises its head….

  16. “To the contrary, state contract law required him to enforce the prior agreement of the parties, which stated that they would be bound by Islamic law.”

    ************************

    Or maybe not. I would have no problem with the Judge refusing to uphold the parties agreement as violative of manifest public policy. Had the parties agreed to condition their behavior of the positions of the planets under some grand astrological design or according to the dictates of the Klu Klux Klan, would we be so sanguine about enforcing their contract? I see very little difference between those examples and the sophistries of a belief system that promotes religious hegemony and misogyny as central tenets.

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