The House Judiciary committee this morning approved HB 1041, a measure by Rep. Brandt Smith (R-Jonesboro) that seeks to declare "American laws for American courts." The bill next heads to the full House for a vote, likely early next week.
HB 1041 declares court rulings void if they are based "in whole or in part" on a body of foreign law that "does not grant the parties .... the following fundamental rights, liberties, and privileges granted under the Arkansas Constitution or the United States Constitution." Among the rights listed are due process, equal protection, freedom of religion and speech and press, the right to privacy, the right to bear arms and, (somewhat incongruously), "the right to marry, as 'marriage' is defined by Arkansas Constitution, Amendment 83." Amendment 83 banned same-sex marriage in Arkansas and was overturned by the U.S. Supreme Court in 2015.
Several members of the public delivered testimony against the bill, including Latino Arkansans who worried the bill would affect ID cards issued by consulates to foreign nationals; a representative of the Unitarian Univeralist church who asked whether the references to Amendment 83 were an attempt to abridge the rights of same-sex couples; an attorney who said the bill could create headaches for international business transactions in the state; and, multiple speakers who expressed concern the law was targeting Muslims. No member of the public spoke in favor of the bill.
In other states, such legislation has been introduced based on a theory that's circulated among conspiracy theorists on the right: Sharia, or Islamic law, is secretly infiltrating the American judicial and political systems and must be preempted.
Smith said this morning his bill is not specifically about Sharia. However, when I asked him in December about the need for such legislation in Arkansas, the only example Smith gave was an anecdote involving a custody dispute in which a woman's "husband, who was from the Middle East ... based his decision-making on Sharia law and fled the country." Smith related the same anecdote to the committee today when he presented the bill, though he scrupulously avoided the term Sharia.
"There is one case that I'm aware of out of Jonesboro, Arkansas involving a faculty member at Arkansas State University," Smith said this morning. "There was a dispute, a family dispute. I believe it was over a separation or divorce case, and the husband decided he was not going to prevail, and he took the child and left to return to his original country of origin during the court proceeding. This left the constituent in Jonesboro, Arkansas without any recourse, and there’s no follow up, because we don’t have an opportunity to chase down one of the parents who does flee the United States. ... So we’re trying to establish some groundwork here to prevent future problems."
Rep. Clarke Tucker (D-Little Rock) pointed out that in such a case, there's nothing an Arkansas court could do. "If they were no longer in the jurisdiction of Arkansas or the United States, I don’t see anything in this bill that helps that situation," he said. "Are you aware of any examples in America, or specifically Arkansas, where a court relied upon some non-American law and in the course of that reliance has abridged one of these rights that the bill is seeking to protect?"
The question was answered by Paul Deckert, a retired Marine Corps colonel who accompanied Rep. Smith to the table and who works for a national, right-wing organization called the Center for Security Policy. (The organization's website says that the Center "has undertaken several campaigns to expose the threat to America from Shariah" and asserts that America is "under systematic, sustained and seditious assault – a 'Stealth Jihad' – by adherents to Shariah.") Deckert told Tucker that he was aware of a divorce case in Maryland in which a trial court gave custody of a minor child to a husband who went back to Pakistan, his country of origin, based on a reading of Islamic law. An appellate court overturned the decision, he said. Deckert said he didn't know of any cases in Arkansas. He added that "there is no way for us to know how often trial courts err."
Rep. Charles Blake (D-Little Rock) asked why the bill was necessary. Smith said that — contra the many opponents of the bill who'd gathered in the room — HB 1041 would help protect immigrants by making sure that "when they set foot on American soil they literally will be protected by the same rights and privileges that protect you and me."
Some immigrants in the U.S. "tend to group in small enclaves and they feel comfortable among their own people," he said. In vulnerable immigrant communities fleeing "war and famine and chaos and tyranny ... in some of these small enclaves, what happens is there will be some elder, some leader arise out of the group who says ‘We’re here, but we’re still going to run our lives based on law from our originating country,’ and that puts some people who wanted freedom at risk of running afoul against their own people group after they arrive in our country."
SPEAKING OUT: Hashim Ghori and Imam Mahmood el-Denawy ask the Judiciary committee to say no to HB 1041. Bill sponsor Rep. Brandt Smith sits in the background, center; Paul Deckert is to Smiths' left.
Several of Smith's fellow Republicans on the committee expressed reservations about the bill. Rep. Doug House (R-North Little Rock) gave the example of a couple married in Israel that relocated to Arkansas and divorced, leading to a custody dispute. "How is a court to determine if they’re married without referencing Israeli law?" he asked. Deckert said the bill wouldn't prevent a court from looking at another country's law. "It just says ‘We’re going to stop when there’s a clear violation,'" he claimed.
Rep. Carol Dalby (R-Texarkana), a former judge, objected to the idea that the judiciary needed to be bound by legislative action in what it can and cannot consider in adjudicating a case. She asked Smith if he was aware of any Arkansas court casesin which foreign law was applied rather than the constitution. Smith said he was not.
Hashim Ghori, a co-founder of the Islamic Center of Little Rock and a poultry veterinarian, said he had lived in the U.S. since 1967. To a Muslim, Sharia simply means following the moral and religious precepts of Islam, Ghori explained. "All observant Muslims practice Sharia," he said. "Defining Sharia as a threat would therefore be the same thing as saying all observant Muslims are a threat." Ghori emphasized his understanding that "this country is guided by the U.S. Constitution and laws. This is a great country. I have been in this country for the past 50 years and I have very well benefited … Sharia law does not intend to replace the American laws."
Mireya Reith of the Arkansas United Community Coalition said that Rep. Smith was "coming from a good place" with the bill. But she said it was a mistake to be "creating laws for possible scenarios, things that have not happened." And as a second-generation immigrant, she took issue with "this idea that we’re in enclaves and we don’t assimilate and somehow there need to be additional protections." She said the bill could affect ID cards, such as those issued by the Mexican consulate in Little Rock.
After public comment was over, Rep. Bob Ballinger (R-Hindsville), a leading voice of conservatives in the House, acknowledged that Smith's bill "doesn’t do a whole lot and I hope it would actually never do anything. As long as a judge follows the law ... then it would do nothing. I hate the fact that we’re going to spend two hours on a bill that does nothing, but that's essentially what it does." And yet, Ballinger said he was still supporting the bill.
"Nobody in here wants us running over anybody’s religion, particularly if it is a minority religion ... I don't want that," he said. "However, there are versions of Sharia that's not Islam, that's an ideology that's not consistent with our Constitution, and so an individual can go to Pakistan, can get an order where a woman has nowhere near the rights that she's protected here, under what they call Sharia law." The bill isn't targeting any religion, Ballinger argued. "It's specifically targeting the constitution, and freedom."
The bill passed on a voice vote, with loud "Nos" from a few committee members.