A judge in Texas earlier this year effectively denied a U.S. citizen her constitutionally protected due process rights, choosing instead to order her to appear before an Islamic tribunal where her testimony is considered inferior. And when her lawyers sounded the alarm — the judge doubled down.
What are the details?
In March, Collin County District Judge Andrea Thompson ordered a Muslim woman seeking a divorce from her husband to undergo arbitration not through regular channels but through an Islamic court, also known as a Fiqh Panel — a move that the woman's lawyers argue is an obvious and unconscionable affront to her constitutional rights.
The woman, Mariam Ayad, was attempting to exercise her legal right to a divorce last year when her husband, Ayad Hashim Latif, revealed that on the day of their wedding in 2008, she had signed an Islamic prenuptial agreement to have all matters regarding the marriage and divorce be decided according to Sharia law.
According to court documents, Mariam claims that she was essentially hoodwinked and defrauded into signing the document. At the time, she believed she was signing two copies of a marriage acknowledgment form, which is customary in Muslim cultures.
Notwithstanding, Mariam's lawyers argue the agreement — which outlines that a three-man panel of Muslim imams are to decide all issues relating to the marriage, including alimony, division of property, child support, and even custody of the couple's 6-year-old son — ought to be voided in lieu of U.S. law. A copy of the agreement was provided to TheBlaze.
The Texas district judge — in complete disregard of both federal and state law — ruled that the prenuptial agreement is binding, without taking testimony from the wife.
In absence of relief, Mariam will now be required to settle her divorce matters with the Islamic Association of North Texas in front of the Muslim clerics who view her testimony and evidence as carrying half the weight as a man's.
Mariam has filed a writ of mandamus with the Fifth Court of Appeals in Dallas to restrict the lower court from enforcing the arbitration order. She is being represented by Michelle O'Neil and Michael Wysocki of the O'Neil Wysocki law firm in Dallas.
What changes did the judge make?
Moreover, court documents obtained by TheBlaze show that Thompson vacated the original March order after Mariam's lawyers challenged it. But instead of changing the order's effect, the judge seemed to have merely changed some of the wording to make it appear less controversial.
"It is therefore ordered that Respondent's Motion to Enforce Islamic Prenuptial Agreement and Refer Case to Muslim Court or Fiqh Panel is granted and the Court refers the case to a Muslim Court or Fiqh Panel for [Alternative Dispute Resolution]," the court order dated March 24, which was viewed by TheBlaze, said.
An updated order, dated June 14, removed words such as "Islamic," "Muslim," and "Fiqh," but reiterated the court's decision.
"The Court has no discretion but to enforce the agreement of the parties in their Prenuptial Agreement signed on December 26, 2008, and refer the parties to arbitration per the terms of their agreement," the June order states.
"Never in my life have I ever seen a judge do that," Wysocki said in a phone conversation.
The strange case serves as an example of the incompatibility that exists between American law and Islamic Sharia law and the clash that can occur when the two systems are juxtaposed.
What's especially unacceptable in this case, according to Mariam's lawyers, is that a U.S. district judge would force an individual to undergo arbitration in accordance with a foreign legal system contrary to the laws of the country of which she is a citizen.
"As a society, we are long past the days when women needed permission from their husbands to get a divorce. Our United States Constitution gives each American woman citizen the right to marry but also the right to divorce," O'Neil told TheBlaze in a statement. "Judge Thompson's ruling requires this American woman citizen to submit to a non-American, unconstitutional, male-run, Muslim religious court to ask for permission to divorce her husband where her right to a divorce could very well be denied to her under Sharia law's family code."
Wysocki added: "We just celebrated the birthday of our country — the day that we remember the freedoms we possess from being Americans. Preservation of our America way of life is important. Our US Constitution is important. Our American courts are important. As long as I have breath, I will defend and support our Constitution and the rights of women in our American courts. I will fight against any judge anywhere that thinks it is acceptable to force an American citizen to have her rights determined by a Fiqh Court, before a three-man panel, applying sharia law. That's never going to be OK on my watch."
Texas Attorney General Ken Paxton has spoken in regard to cases where state judges consider foreign laws, particularly Sharia law. In doing so, he affirmed that courts should not apply "foreign law" when "doing so violates a party's right to due process or the clearly established public policy of this State."
O'Neil and Wysocki noted that at this juncture the ball is with the Fifth Court of Appeals. But they said they plan to file in the Texas Supreme Court in the next phase of the process.