Oklahoma and Sharia

[Beavah]

My understanding of the law also eliminates using the 10 commandments as any basis for a decision since they are truly international laws.

 

Yah, that and such other international laws as habeas corpus.

 

Da more amusing ones are things like the Hague Conventions which govern things like the international sale of goods or enforcement of child support. So maybe da State of Oklahoma is hopin' to better its economy by setting itself up as the refuge of choice for deadbeat dads from around the world.

 

B

 

 

 

[packsaddle]

The deadbeat drunk who nearly killed my family in a head-on collision a few years back fled to OK to avoid prosecution. It worked too. On the bright side, he managed to get into an airline flight school there. Have a nice day.

[The Blancmange]

 

Da more amusing ones are things like the Hague Conventions which govern things like the international sale of goods or enforcement of child support. So maybe da State of Oklahoma is hopin' to better its economy by setting itself up as the refuge of choice for deadbeat dads from around the world.

While I agree that the initiative that started this thread is a solution looking for a problem, I think even one who thought it useful would point out that such provisions of international law are enforced in the US only after US participation is ratified by the Senate as a treaty, giving it the force of US law.

[eisely]

The Blancmange makes an extremely important point that is often overlooked by commentators and people on both sides of the argument. Treaties become the law of the land under our constitution only upon ratification by the senate. The controversy arises when politicians try to enforce treaties that have not been ratified, or even submitted for ratification, as somehow binding law in the US. Even then the reference is to a treaty or draft agreement rather than court precedent in other jurisdictions.

[Lisabob]

"when your religion is in conflict with the law, the law wins."

 

For the most part, this is already the way things are. You can *believe* anything you want, but you can't necessarily act on certain beliefs that would result in violations of law.

 

Informal use of sharia exists in some places, but this is entirely voluntary. For example, family members or neighbors with a dispute might choose, by mutual agreement, to allow a respected religious leader to help them mediate/resolve the dispute.

 

But anyone, even within the Muslim community, who chooses to use the formal legal system, can circumvent these informal sharia institutions in an instant. Sharia does not hold the force of law anywhere in this country, any more than my mother-in-law's pronouncements about family disputes do. We may abide by her pronouncements because we choose to, but not because we're legally required to.

 

I wonder what Oklahomans were worried about? At least on the surface, this has the smell of fear-mongering to me.

 

PS: Beavah - I am sure you know that habeas corpus is in the US Constitution (Article I, section 9). While it might also have roots in other countries' legal traditions, it is clearly established in our own "law of the land"(This message has been edited by lisabob)

[Beavah]

Yah, it's actually a bit more complicated than that, Blanc and eisley. Even after ratification, not all aspects of treaties automatically apply without passing separate laws in support of the treaty aims. But I was talkin' about ratified treaties, because such things are "international law" as defined by the Oklahoma constitutional amendment, and therefore prohibited to OK judges. Just as the definition of habeas corpus is not present in the Constitution, eh? It derives from the common law, our international British heritage.

 

In other words, not only is the new amendment odd and rather silly, it creates some real potential problems. Or at least creates quite da welfare system for attorneys in OK who will be litigating this forever. It's a mess.

 

A U.S. court can't apply Sharia in criminal cases, eh? There's no risk of that. It can only consider such things as just one form of background evidence in civil cases, as acco suggests. So, for example, in a discrimination case against an employer for wrongful discharge, a plaintiff may refer to Sharia to explain why his religion requires him to wear a beard, even though the employer doesn't like fellows with beards. The Oklahoma amendment would seem to prohibit such reference to or consideration of Sharia law.

 

Of course, that makes it in and of itself a clear, obvious violation of the U.S. Constitution, since Jews might refer to Jewish Law and Catholics to Canon Law and so forth. I have no doubt Oklahoma's approach will be struck down in every federal court it touches.

 

So da amendment is odd, silly, a bit dumb, unconstitutional, and will cost the state of Oklahoma a considerable amount of money trying to defend and clarify it.

 

What's interestin' to me in the face of all that is the motivation for such an approach, eh? Especially in Oklahoma, which is hardly an Islamic hotbed. Yeh would think acco's Michigan, which has one of the largest arab/islamic communities in da midwest, would be the one pushing this if it was an issue. But acco seems pretty content with things.

 

Beavah

 

[acco40]

"Outsiders" have stated that Dearborn, MI utilizes Sharia law as the law of the land but that is patently false.

 

I believe the area I live in has the #2 highest concentration of Arab-Americans (next to Los Angeles). My neighbors are Iraqis (Christian/Caldean).

 

But yes, when the Secretary of State's office (our version of the Department of Motor Vehicles) requires females to remove head scarves for their driver's license photo, I think that Sharia Law is a relevant piece of evidence. I'm not saying it "trumps" the formal law, only that is a part of the whole story.

 

 

[Mr. Boyce]

If I'm no mistaken, the origin of Oklahoma's concern lies in the cases taking place in England, where there is a definite demand for sharia law.

 

Don't content yourself believing those troubles will stay overseas.

[Beavah]

Yah, but there's all kinds of other things in law where those British folks do things funny, eh? Some, like government surveillance, yeh would think would be more upsetting to the good people of Oklahoma than worryin' about Sharia.

 

Actually, what's goin' on in England is that the state recognizes independent arbitration panels of different types. Citizens can do something very similar here in da U.S. If two parties to a civil dispute agree to binding arbitration, then the courts will generally enforce the finding of the arbitrator. And the arbitrator can be any disinterested party, eh? An attorney, a retired judge, a Catholic marriage tribunal, a muslim imam.

 

The key ingredient in Great Britain as in the U.S. is that both parties have to agree to the binding arbitration and the arbitrator up front, eh? That's not an imposition of Sharia or other arbitration by the state, that's two parties of a dispute voluntarily submitting the dispute to be decided by someone with a legal/religious/ethical background that they happen to trust.

 

So I again fail to see da issue. Generally speakin', arbitration is an excellent method of alternative dispute resolution that saves the parties and the state a lot of time and money.

 

Beavah

 

[CalicoPenn]

1) In case anyone missed it, a Federal Judge made made permanent an injunction against certifying the vote for this law in Oklahoma on the 29th of November. Her temporary injunction was made on November 8. The permanent injunction will hold until she makes a ruling on the constitutionality of the law itself. Should she rule against the law, and no courts of appeal overturn, it will have the effect of the law never having been in existence in the first place, since the vote can't be certified. Most observers feels she will rule that the law in unconstitutional.

 

2) The unconstitutionality of the law may hinge on a fine point, according to some observers. The constitutional point they see is that the law singles out Sharia law, and does not ban the use of Jewish law, or Christian law. Can you ban the use of a religious set of laws if you only ban one religions set of religious laws? A violation of the establishment clause is one of the reasons the plaintiff brought suit in the first place. Could be interesting.

 

3) About that case in New Jersey that allegedly included Sharia law - the fact is that no one in that case - not the judge, not the prosecution, not the defense - used the term "Sharia law". The defense was about a religious belief - that is not the same as Sharia law. Only after the ruling was released did someone mention Sharia law, and that would be media pundits who, as we should all know by now, never let the facts get in the way of a perfectly good rant. Not one of those pundits, or blogs that grabbed on to the story later, has been able to point to a single passage in what would be considered Sharia law, to support the notion that the defense was actually part of Sharia law. A claim is made that it was Sharia law, but no proof of that was forthcoming - shouldn't that give us pause to wonder what the facts really are?

[John-in-KC]

B,

 

I think the real question is:

 

State X has three governing sets of law:

- International conventions to which the US is a party by ratified treaty. (99.999% probability this will never apply).

- Federal Law

- State Law

 

From what this public manager knows, sometimes you attorney types look back to the English Common Law as well.

 

So that's four sets for one judge to evaluate and apply as appropriate in any one given case.

 

TO ME, what Oklahoma did was say:

Judges, you may not consider other people's statutes beyond these four in looking at our statutes. That could be German law, French law, or even Argentinian law, as well as Islamic Sharia law.

 

You, unlike I, are reputed to have a trained legal mind. What say you on what should be in/should be out???

[Merlyn_LeRoy]

If Louisiana is involved, you might also need to add the Napoleonic code.

[GernBlansten]

I wonder if the Scout Law is now illegal in Oklahoma? Didn't it originate from some English chap?

[Woapalanne]

"I have no doubt Oklahoma's approach will be struck down in every federal court it touches."

 

Why? It EXACTLY matches a provision of the U.S. Constitution. It's redundant.... not unconstitutional. (Oh, that's right - the Administration also objects to the Arizona law matching Federal law.)

[Beavah]

Why? Because of stuff like the example I gave, eh? The one with da religious discrimination against fellows with beards. By singling out Sharia for exclusion from civil cases but not excluding Rabbinical Law or Canon Law, the government has endorsed the laws of some religions over others. That's the veritable definition of what the first article of the Bill of Rights excludes.

 

On the international law bit because of federal pre-emption.

 

John-in-KC, the term "international law" refers exclusively to law between, not within, nations. In other words, treaty law. The laws of Germany, France, etc. are national laws. So as written, the Oklahoma amendment tries to prohibit the application of international treaties, not the application of German law. Though, in some cases, the treaties bind us to honor other countries laws (so if yeh get married in France, Oklahoma should recognize that you're married, for example).

 

Instructing judges to ignore international law is a problem because a number of treaties affect private civil transactions, such as the Hague Conventions. What Oklahoma is sayin' by refusing to consider are things like its companies can't engage in such things as contracts with international corporations for the buying and selling of goods, because the international partners can't rely on the contract being enforced by Oklahoma courts. Or that an Oklahoma court won't enforce child care obligations on someone who flees to its jurisdiction. And on and on.

 

We live in a global society, eh? Yah, yah, sure, Oklahoma can try to withdraw from the rest of the world. We've got a great example of what yeh end up with when you do that: North Korea. Vibrant economy and society there, eh?

 

Beavah