Thursday, September 15, 2016

American Law? Or Christian Law, Muslim Law, Jewish Law? - Johanna Markind




by Johanna Markind

The Minnesota Court of Appeals has rejected an argument that would essentially have required a lower court to divide the proceeds of a wrongful-death suit under shariah (Islamic law) rules governing inheritance.

  • "[A] basic American legal principle [is]: American courts apply American law, rather than one rule for Muslims, one rule for Christians, one rule for Jews, and so on." — Eugene Volokh, First Amendment law professor at UCLA.
  • Allowing Islamic shariah law to substitute for state law regarding inheritance and related matters would undercut the values of equal protection of the laws and equality before the law, and in many instances, would violate American law.
The Minnesota Court of Appeals has rejected an argument that would essentially have required a lower court to divide the proceeds of a wrongful-death suit under shariah (Islamic law) rules governing inheritance. The decision was based on technical grounds, leaving open the question of whether a state court would apply shariah in the future.

Nadir Ibrahim Ombabi, a 57-year-old taxi driver, was killed October 29, 2012, in a car accident outside Minneapolis. Ombabi was a native of Sudan, where he was a family doctor, and was working on becoming certified as a medical doctor in the U.S. when he died. He was active in Minnesota's Sudanese community.

Ombabi left behind a wife, mother, brother, and sisters. He married Nariman Sirag Elsayed Khalil in Sudan, under Islamic law. Reportedly, she was still living in Africa when Ombabi died, and he would "often send back money to help his family." His brother was living in California and a sister in Canada.

Ombabi's next of kin brought a wrongful-death claim, which was settled for $183,000. Minnesota law requires the proceeds of a wrongful-death suit to be given to "the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death."

Next of kin are basically everyone who qualifies as a potential heir under the state's intestacy law. States have laws governing how to distribute property when a person dies without leaving a will. In Minnesota, if the decedent has no children (as seems true of Ombabi), or if all of his children are also children of his widow, the widow inherits the entire estate. If, and only if, the decedent leaves neither spouse nor children, the estate passes to his parents. If he leaves no parents either, it goes to his brothers and/or sisters.

The district court found "no credible evidence to prove Mr. Ombabi's mother, brother, or sisters experienced a pecuniary loss, or more importantly what that pecuniary loss is, because of Mr. Ombabi's passing." It ordered that all of the proceeds (less expenses) be given to Ombabi's widow, Khalil.

Ombabi's brother objected that the court should have divided the proceeds under Islamic law, giving the widow only 25%, Ombabi's mother's estate 16.7%, and the balance distributed among Ombabi's siblings, with the brother receiving twice as much as each sister. He based this on the claim that "the law of all parties (the decedent, his widow and decedent's next of kin) is the Islamic Law and they are all Muslims and follow the specifics of the religion."

The court rejected that argument, on the grounds that it was unsupported by legal authority or argument, and that it was unclear whether it had been raised in the lower court. As a general rule, new issues may not be raised for the first time on appeal.

The court did not prohibit application of shariah to wrongful death suits or other cases. It only held that it found no legal or factual support that would justify applying it to Ombabi's case.

As First Amendment law professor Eugene Volokh commented:
Sometimes American law does allow the implementation of foreign legal rules, or religious legal rules. A contract might, for instance, call for applying the law of Sudan, or a will might specify that the property be distributed one-fourth to the widow, one-sixth to the parents, one-sixth each to the three brothers, and one-twelfth to the one sister (whether or not that's the sharia-mandated split). A court may well enforce such provisions, subject to any constraints imposed by American public policy. ... But there has to be an American law principle calling for such application of foreign law. And in this case, there was no such principle.
Even where the party or parties have agreed to apply certain rules, American courts will refuse to enforce them if they violate American law or certain public policies. For example, American courts will no longer enforce covenants restricting the sale of land to exclude black purchasers, because doing so would effectively violate the Equal Protection Clause.

Another example: although Americans are generally free to bequeath their property as they see fit, they are not entirely free. In Minnesota, a wife or husband who lives in the state and who has been married to her or his spouse for at least 15 years is entitled to claim half of the spouse's estate (called an elective share), even if the spouse's will leaves less. That is significantly more than the 25% share to which shariah law evidently entitled Ombabi's widow (although, on the other hand, the elective share of a newlywed in Minnesota is considerably less than a wife's share under shariah).

In this case, the widow evidently lived in Sudan (where Muslim law applied), so she would not have been entitled to make a claim under Minnesota's elective share in any case.

Still, it remains to be seen whether state courts would apply shariah law, if the issue were timely raised and properly argued. Volokh suggests the court's decision was "influenced by a basic American legal principle: American courts apply American law, rather than one rule for Muslims, one rule for Christians, one rule for Jews, and so on." Notwithstanding certain exceptions, American courts also generally apply the same law to men and women.

Allowing Islamic shariah law to substitute for state law regarding inheritance and related matters would undercut the values of equal protection of the laws and equality before the law, and in many instances, would violate American law.

Johanna Markind is an attorney who writes about public policy and criminal justice.

Johanna Markind

Source: https://www.gatestoneinstitute.org/8922/american-muslim-law

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Copyright - Original materials copyright (c) by the authors.

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