AFLC Co-Founder and Senior Counsel David Yerushalmi took to the pen again to defend the American Laws for American Courts (ALAC) legislation, which has faced recent, misguided criticism from some conservatives, including the Deputy Editor of First Things, Matthew Schmitz. Mr. Schmitz had recently criticized ALAC in an article in National Review, and after a few exchanges in the Corner, Yerushalmi gave his final word to set the record straight.
I am not in the habit of getting into a polemical tit-for-tat in public discourse. The reason is that I am not enamored of polemics. But, in the matter of American Laws for American Courts and Mr. Schmitz’s arguments on these pages against that model legislation, including his latest in the effort to demean this legislation and its supporters, a final word on the subject seems prudent.
Once again, Mr. Schmitz attempts to characterize ALAC as an assault on religious freedom. Yet, he cannot muster a single interpretation of this model law, or the versions of it passed in Tennessee, Louisiana, Arizona, or most recently, Kansas, that threatens religious freedom. His entire argument is to rely upon other champions of religious freedom who have criticized ALAC as dispositive evidence. Yet, none of these men have made a rational argument along these lines either. So, are we to simply accept this version of argument ad verecundiam or might we expect actual reasoned analysis?
And, when Mr. Schmitz finishes listing his authorities, he finally gets to what might be his (and their) effort at substantive argument to prove that ALAC is an assault on religious freedom, wherein he writes:
There is a reason these men oppose the Kansas law, and it is not any sympathy for sharia but rather love for our constitutional principles. As Robert P. George warned in First Things, “A precedent established by people in, say, Murfreesboro, Tennessee who despise Islam and see it as a pernicious force, may prove very handy to people in, say, San Francisco who have a similar attitude towards Catholicism.”
In other words, ALAC, which does not in any way target a religious law that is not constitutionally offensive, might somehow be used by anti-Catholic bigots in San Francisco. But how would they accomplish this “magical” feat when ALAC doesn’t come close to such an interpretation of anti-religious bigotry? Mr. Schmitz, who argues against opposing phantom enemies, seems to be laboring under the fear of his own phantoms.
As to the substantive law that is ALAC, while Mr. Schmitz concedes that his original interpretation that ALAC somehow attacks all foreign and religious laws under all circumstances is “unlikely” because it is “ridiculous,” there are other quite sound rules of statutory interpretation that would prevent this ridiculousness from prevailing. This isn’t the place to delve into statutory construction, especially given Mr. Schmitz’s concession, but Mr. Schmitz still has problems with ALAC based upon his view that ALAC is unnecessary in that it prohibits “illegal only that which is illegal and unconstitutional.” But, as the Maryland case I cited in my earlier response points out, Mr. Schmitz and his colleagues are simply wrong about this.
Let’s take the case of comity for a foreign judgment, as in the child-custody judgment rendered by a Pakistani sharia court and enforced by a Maryland appellate court. A foreign judgment is typically granted comity unless it is “void as against public policy.” That is the general rule in the federal courts and in most state courts. But, the question and the rub is exactly what are the state’s public-policy margins or limitations on granting comity for a foreign judgment? The courts are not required by anything in the U.S. Constitution or in most state constitutions to conclude that those public-policy limits are our own constitutional rights. Indeed, the Maryland appellate court could not find “irreversible error” in the trial court’s granting comity to a foreign judgment permeated with constitutional infirmities. And Mr. Schmitz ignores the fact that state appellate courts have said time and again that the setting of these parameters of a state’s public policy for purposes of applying the “void as against public policy” doctrine is primarily the duty and prerogative of the state legislature — e.g., passing such laws as ALAC or the federal version dealing with free speech called the SPEECH Act of 2010, also discussed in my earlier response to Mr. Schmitz but ignored by him entirely.
A final note on what Mr. Schmitz terms a “concise retort” by a Robert Vischer that ALAC won’t be able to deal with a contractual waiver of a constitutional right. Constitutional liberties, federal and state, embodied in our Bill of Rights or in a state constitution are not, at least today, simply words on parchment. They carry with them the jurisprudence announced by the U.S. Supreme Court (and lower federal courts) and the appellate courts of the state, respectively, as very much a part of the laws themselves. There are some rights that may be waived casually, even by default, such as the right to a jury trial in civil litigation. A party who agrees to be bound by the law of Germany, where there is no such right to a jury trial, will be bound by that waiver with ALAC in place or not. There are other constitutional rights that may only be waived under controlled circumstances — such as a fully informed consent sans coercion. And, finally, there are constitutional rights that may not be waived at all. Thus, no party may agree to denied fundamental fairness or equal protection.
So it is under ALAC, since ALAC is designed to set these constitutional liberties, together with their jurisprudential baggage, as the limit of a state’s public policy, beyond which a foreign law is void.
And this is perfectly consonant with the “void as against public policy” doctrine. For example, at the federal level, Congress has passed laws that make it actionable for an employer to retaliate against an employee for making an employment discrimination claim under federal law. The federal courts have made it clear that any employment contract that attempts to waive this protection against retaliation is void as against public policy; undermining the federal statute against retaliation and the competing policy of “freedom to contract” will not insulate this waiver from judicial scrutiny under the “void as against public policy” doctrine.
In Mr. Schmitz’s only real argument — ALAC is “not necessary” — Mr. Schmitz does not argue that foreign laws, such as sharia, have not been applied improperly in state courts, only that in his view (and in Matthew Franck’s on Bench Memos) it has not occurred regularly enough to merit a solution. Of course, Mr. Schmitz (and Mr. Frank) ignore the fact that for every published opinion, in the real world, there will be dozens of trial court “orders” that are not part of published opinions and not part of the any real public record accessible to general legal research. This is especially true in family law courts where most of the abusive sharia rulings take hold. Further, Mr. Schmitz ignores the plight of real people, like the Maryland mother who lost her child to a sharia judgment because she feared to travel to Pakistan to be ruled an apostate or adulteress under sharia law and put to death.
But even assuming that we might debate the empirical threat from constitutionally offensive foreign laws and reasonable men and women might differ, given the fact that Mr. Schmitz’s only substantive argument against the law is that it is unnecessary, how does passage of ALAC do damage?
Presumably, Mr. Schmitz will fall back on his “religious bigotry” claim, even though he can point to nothing about ALAC that impinges upon the religious freedom of anyone — be they Muslim, Catholic, or Jewish.
One final note. Mr. Schmitz begins his latest rebuttal by citing to a kippah-wearing observant Jew defending a Catholic’s right to wear a cross in the Grand Chamber of the European Court of Human Rights as the high moral ground in the legal fight for religious freedom. He then attempts to step away from his characterization of the supporters of ALAC as ipso facto religious bigots by asking rhetorically, “don’t we all have our prejudices?” Mr. Schmitz is too cute by half.
For the record, as an “an observant Jew wearing a kippah,” I have provided pro bono legal services for Muslim immigrants who have assisted the U.S. in their fight against the global jihad, including obtaining entry visas to prevent their assassination abroad by jihadists. Moreover, in my work providing pro bono legal representation in courts across the nation defending our constitutional freedoms, as co-founder of the American Freedom Law Center, together with my partner, Robert Muise, a devout Catholic and father of twelve, I have stood shoulder to shoulder defending Catholics such as Priests for Life in contesting Obama’s contraception mandate, and Christian pro-life groups sued for “copyright infringement” by “white shoe” mega law firms retained by the abortion industry to preclude the free speech rights of pro-life Christians.
To even suggest, as Mr. Schmitz does, that those of us confronting the reality of transnationalism and Islamism are harboring some darker motives is, to put it mildly, patently offensive. Are there bigots supporting ALAC? More than likely. Are there bigots supporting the Constitution, the Catholic Church or the ACLU? Also likely. But no reasonable man builds an argument in this way if he seeks reasoned debate, unless of course he is a student of Thrasymachus.