Appeals court won’t stop Hillsborough judge from considering Islamic law
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. October 26, 2011
In a case that has attracted national attention, a Florida appeals court appears to have cleared the way for a Hillsborough judge to use Islamic law to decide a key issue in a lawsuit involving a local mosque. Read the full story here.
By William R. Levesque, St. Petersburg Times Staff Writer
TAMPA — A Florida appeals court appears to have cleared the way for a Hillsborough judge to use Islamic law to decide a key issue in a lawsuit involving a local mosque.
In a case that has attracted national attention, the 2nd District Court of Appeal on Friday denied without comment a petition to prevent Judge Richard Nielsen from invoking Islamic law.
The petition, filed by the Islamic Education Center of Tampa, contested a March ruling by Nielsen announcing his intent to use “ecclesiastical Islamic law” in the case.
Nielsen limited his use of Islamic law to deciding whether arbitration by an Islamic scholar mediating a dispute between the mosque and ousted trustees followed the teachings of the Koran.
The arbitration itself is in dispute, with mosque officials saying it never took place.
The arbitrator ruled in favor of several men ousted as mosque trustees, a decision that, if upheld, could wrest control of $2.2 million in mosque coffers.
Like everything else in the litigation, the meaning of the appeals court ruling is in dispute.
Attorney Paul Thanasides, representing the mosque, said an appeals court decision without a written opinion means the court wasn’t addressing the merits of the case.
Thanasides said the U.S. Constitution and Florida law prevent Nielsen from following Islamic law. On Monday, he filed a motion with the judge asking him to dismiss the case for lack of jurisdiction.
“Florida law is clear that courts may not decide corporate governance disputes involving religious organizations,” the motion said.
Lee Segal, a lawyer representing four ousted trustees, said the appeals court ruling was a “big-time” win for his clients and vindication for Nielsen, who does not comment on pending cases.
“This basically puts the case back in front of Nielsen, who has a good handle of what the issues are,” Segal said.
He noted the judge could still rule against his clients if he determines that Islamic law was not, in fact, followed.
“There’s still lots of barriers for us to cross,” Segal said.
The case touched off a storm of criticism against Nielsen earlier this year.
Web commentators have misidentified the judge as a liberal trying to subvert U.S. law. Nielsen is, in fact, a conservative Republican appointed to the bench by former Gov. Jeb Bush.
At the time of Nielsen’s original decision, the political atmosphere was already charged with debate that Islamic law had gained a toehold in U.S. courts.
Even before Nielsen’s ruling, two Florida lawmakers, Sen. Alan Hays and Rep. Larry Metz, announced legislation to prevent the use of any foreign legal code being applied in state courts.
The legislation was not adopted by Florida lawmakers.
In May, the Center for Security Policy released a study that evaluated 50 appellate court cases in 23 states involving issues related to Islamic law.
The study noted Islamic law has been “formally recognized” in state courts.
The cases involved mostly Muslim women and children “who were asking American courts to preserve their rights to equal protection and due process,” said the center’s president, Frank J. Gaffney Jr.
“When our courts then apply sharia law in the lives of these families, and deny them equal protection, they are betraying the principles on which America was founded,” he said.
To others, Nielsen’s decision has been widely misunderstood. Markus Wagner, a professor of international law at the University of Miami School of Law, said courts often refer to religious codes in arbitration cases.
If two sides in an arbitration, for example, agree to use Jewish law, then a judge could properly use the Talmud in deciding a case, Wagner said.
“On the legal side, it’s just not all that unusual,” he said.
William R. Levesque can be reached at firstname.lastname@example.org.