Posts Tagged ‘sharia law’

8
Nov

Judicial Absurdity in Oklahoma

   Posted by: Robert    in Law, News

Reporting on the matter so far is sparse, but it appears that there may be an activist federal district judge in Oklahoma who has decided to begin the work of frustrating the will of the people.  The case involves an Oklahoma ballot measure to amend the state’s constitution to clarify what lines of authority the state’s courts are allowed to use in performing their judicial function.  The amendment language, among other things, calls out Sharia law as being one line of authority that Oklahoma’s courts are to specifically avoid using.  A Muslim activist sued, prompting Chief Judge Vicki Miles-LaGrange, appointed by Clinton in 1994 to the U.S. District Court in Oklahoma City, to issue an injunction against the measure pending a hearing on its constitutionality under the Federal Constitution.  Far from enjoining the law pending a hearing, this lawsuit should have been dismissed as frivolous without so much as a second thought.

The Oklahoma International Law Amendment of 2010 amends the state constitution with the following language (emphasis added):

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

It is difficult, if not impossible, to mistake the clear purpose of this language.  The people of Oklahoma want their courts deciding cases based on US law.  Though much more specific, this is no different than the thrust of the Federal Constitution which limits courts to cases “arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” (US Const. Article III)

The argument apparently being made against the Oklahoma amendment is twofold. The complaint apparently alleges that the amendment stigmatizes the Muslim religion and would invalidate the complainant’s will, which is based on Sharia law.  In reality, the Oklahoma amendment does no such thing.

The fact that the amendment calls out Sharia law has nothing to do in any way with religion, and certainly does not stigmatize Muslim.  The amendment cites certain authorities of non-domestic character which judges are meant to specifically avoid, including “international or Sharia Law.”  Both international (sometimes called foreign) law and Sharia law are notable in two important ways.  First, international law and Sharia law differ from traditional US law in a variety of important ways, which could easily lead a judge to rule in a way contrary to the legal traditions of America.  Second, and probably more importantly, actual judges deciding actual cases have used international and Sharia law to reach results which are (at least arguably) contrary to the letter and spirit of US domestic law.  Were Sharia law not being used to (arguably) circumvent US law, there would have been no reason to name it in the amendment.

As far as the complainant’s will is concerned, his belief that the amendment would cause it to become invalid seriously misunderstands the plain meaning of the amendment.  A will, in basic terms, is a legal document that establishes instructions for how to dispose of an estate following a person’s death.  Courts enforce wills though a body of US domestic law known as Probate.  Probate law, though not perfectly so, is largely indifferent to the specific instructions provided in an individual’s will and focuses, instead, on providing a general framework for executing the instructions, whatever they may be.  When courts interpret wills, probate law generally requires that wills be evaluated on their own terms.  Thus, when presented with a Sharia will, a court “adher[ing] to the law as provided in … Oklahoma [s]tatutes” must consider the will as a valid instruction set, irrespective of its religious backing, as long as it doesn’t conflict with with probate law.  Of course, if there is a conflict, probate law must win; but that’s true of all wills, not just those inspired by Sharia principles.

The American people are well within their right to insist that judges follow, first and foremost, US domestic law as defined by constitution, statute, and American legal tradition.  The people of Oklahoma have identified two bodies of non-domestic law which are of special significance to today’s legal landscape because real judges in actual cases have begun using them in ways contrary to domestic law.

Because the Oklahoma amendment is perfectly justifiable on non-religious grounds and does not interfere with religious practice, there is no reason to think it may be unconstitutional.  The lawsuit against it should be dismissed.

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25
Jul

Sharia Presents a Liberal’s Paradox

   Posted by: Robert    in Law

Recent legal news has begin to cover a troubling change beginning to play at the edges of American law.  In New Jersey, the state’s court of appeals set aside a shocking ruling from one of the state’s trial courts which would have held that a man who abused and sexually violated his wife because “he was operating under [Islamic religious] his belief that it is, as the husband, his desire to have sex when and whether he wanted to.”  The court of appeals, in no uncertain terms, properly held the trial court’s opinion to be inconsistent with both New Jersey and federal law.  This case, however appropriately it appears to have turned out, appears, to me, to raise a significant problem for the left.

It goes virtually without saying that the interest in merging Sharia law with US law is an exercise being undertaken exclusively by leftists.  Britain, of course, has actual Sharia courts, established as arbitration tribunals, which hear cases and issue rulings which have the force of law.  In other European nations, national courts have occasionally ruled consistent with Sharia principles despite national laws which point in the opposite direction.  France, though they haven’t got Sharia courts, do have a Sharia tax code which aims to deal with some of the peculiarities of Islamic financial management.  The US, so far, has only rogue judges in liberal states.

So far, Sharia courts and Sharia-related court decisions have all been based on one of three general legal categories: probate, equity, and domestic violence.  It is the cases of domestic violence which are most troubling, and the case in New Jersey illustrates precisely why.

In the New Jersey case, as mentioned, a man raped his wife on multiple occasions under the belief that it was his right, as her husband, to do so.  Had he done that even 35 years ago, it would not have been a crime in the US.  However, as of 1993, spousal rape became a crime in every corner of the United States at the urging of the feminist movement.  In addition to US law, spousal rape is identified in the UN Declaration on the Elimination of Violence against Women, Article 2(a) as a form of violence against women.  There is, I think it is safe to say, a solid consensus which sweeps broadly against ideological lines that cannot tolerate the behavior that took place in New Jersey.  As the self-declared champions of women’s rights, women’s equality, and the fight to end violence against women, it would seem that the left has a vested interest in making sure that no woman is ever raped by her husband ever again.

The stakes, however, go even beyond the question of spousal rape in Islamic marriages.  From what I have been able to find of the trial judge’s logic, it appears to be relatively unbounded.  If the touchstone of the judge’s ruling is the “belief that it is, as the husband, his desire to have sex when and whether he wanted to,” what about that is so closely bounded to Islam that it could not be applied elsewhere?  After all, that was everyone’s belief — and the law — until 1975, meaning most of America grew up in a country where there was no such thing as spousal rape.  And even further, what if I find that it is my belief as a man my “desire to have sex when and whether [I want] to” with anyone that I please?  There would be no such thing as rape, if only I didn’t believe in it.

Rulings like one in New Jersey place the left on a collision course with itself.  It is simply not possible to champion women’s rights and a culture which systematically represses and does violence to women at the same time.  But perhaps the thought that they might even try is part of the reason that the left, right now, has a woman problem.  I, for one, would rather see them win some women back than bury the rest of us under Islamic law.

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