Color me stupid, but I cannot understand how a federal appeals court can rule that an Oklahoma passed law saying that Sharia law cannot be used to settle disagreements is unconstitutional. Do we not operate under a set of laws created over the past 300 years?Why should we be using any other law whether it be foreign or religious law? We do not follow the court's rationalizations.
OK, we get it that Sharia Law is part of Islam and that some contracts between Muslims might include Sharia provisions. Are those provisions enforceable in a court? I would assume that since the contract was between two Sharia-knowledgeable consenting adults, who understood what they were signing, it would be enforceable. However, what happens when one person is not Muslim and signs this contract, does he/she have an "out" as he did not understand Sharia law? However, why should we even consider using Sharia as a complementary legal system?
This brings other concerns to the fore. Should someone, say from another country, want his/her suit to be settled by that country's laws? Should Catholics want their suits settled by Catholic religious law? Or what about Jews, they have their own set of laws, should they be allowed to use their laws only?
This is the opening of a Pandora's box of issues as Islam is more than a religion, it is a way of life that abides by its own set of rules which in many cases may differ from Common Law. Since the Reformation, no other religion demands that their cases be settled by their religious law. Why should Islam be different?
Is there an automatic "out" for any Muslim when Sharia Law differs from Common Law? Does this open the opportunity for Islamic believers to practice "honor killing" as this is allowed by the religion? Can a public facility (restaurant for example) owned by a Muslim treat women and non-believers differently? Could this same establishment say it will not serve non-believers? Can this same restaurant decide that as long as it meets Halal (Islamic food preparation requirements) that it does not need to meet the city or county health codes? All these questions and many more can be answered the same way--it would be against our religion to do anything differently.
We believe this decision is a disaster in the making. No religious law or foreign law should supersede or be used to settle disagreements in the United States. We have our civil law system and it should be the only law that is used. We agree with the Oklahoma law and hope that the decision goes to the Supreme Court and is overruled.
Court: Oklahoma can't enforce Sharia law ban
By Robert Boczkiewicz | Reuters – 13 hrs agoDENVER (Reuters) - A federal appeals court upheld an injunction against a voter-approved ban on Islamic law in Oklahoma on Tuesday, saying it likely violated the U.S. Constitution by discriminating against religion.
A three-member panel of the Denver-based U.S. Tenth Circuit Court of Appeals ruled unanimously that the rights of plaintiff Muneer Awad, a Muslim man living in Oklahoma City, likely would be violated if the ban on Sharia law takes effect.
The decision upholds the ruling of a lower federal court.
"While the public has an interest in the will of the voters being carried out ... the public has a more profound and long-term interest in upholding an individual's constitutional rights," the appeals court said in a 37-page written decision.
The Washington, D.C.-based Council on American-Islamic Relations welcomed the ruling, calling it "a victory for the Constitution and for the right of all Americans to freely practice their faith."
Oklahoma's "Save Our State Amendment," which was approved by 70 percent of state voters in 2010, bars Oklahoma state courts from considering or using Sharia law.
The lawsuit challenging the measure was brought by the American Civil Liberties Union on behalf of Awad, who is director of the Oklahoma chapter of CAIR.
A federal judge in Oklahoma City issued a court order in November 2010 barring the measure from taking effect while the case is under review, finding a substantial likelihood that Awad would prevail on the merits.
The Council said the Oklahoma amendment is among 20 similar proposed laws introduced in state legislatures nationwide.
Defenders of the amendment say they want to prevent foreign laws in general, and Islamic Sharia law in particular, from overriding state or U.S. laws.
But foes of the Oklahoma measure, also called State Question 755, have argued that it stigmatizes Islam and its adherents and violates the U.S. Constitution's First Amendment prohibition against the government favoring one religion over another.
State Senator Anthony Sykes, one of the measure's sponsors, called the decision an attempt "to silence the voice of 70 percent of Oklahoma voters. At some point we have to decide whether this is a country of, by and for the judges, or of, by and for the people."
Opponents also say it could nullify wills or legal contracts between Muslims because they incorporate by reference specific elements of Islamic prophetic traditions.
(Editing by Mary Slosson and Paul Thomasch)
I read the court's opinion. Here it is…
ReplyDeletehttp://www.ca10.uscourts.gov/opinions/10/10-6273.pdf
The legal issue is that the Oklahoma amendment is written too narrowly. If it had simply stated that no court decision may be based on any religion, it would have been constitutional (albeit unnecessary!), since any such decision would be a clear violation of the Establishment Clause of the First Amendment and would be reversed on appeal.
The constitutional problem is that the amendment singled out one religion specifically, and thereby gives it denominational preference. The court based its decision on the U.S. Supreme Court precedent established in the Larson case.
You can read a summary of the Larson case here...
http://www.ca10.uscourts.gov/opinions/10/10-6273.pdf
--David
The issue as I see it is that Islam is the only religion that insists to use its laws instead of Common Law. The argument the court is using is a distinction without a difference.
ReplyDeleteRegardless, I would hope that Oklahoma would re-do their amendment and solve the narrowness.
Actually, that is not true. For example, Jehovah's Witnesses have gone to court to prevent blood transfusions to save the life of their child. If Oklahoma rewrites the amendment to include all religions, I fail to see the point of it. Courts are already barred by the Establishment Clause from basing decisions on religion.
ReplyDelete--David
David you are missing the entire point. Jehovah's Witnesses say it is their religion does not allow transfusions, that is fine as it involves the parent and their child. However, Sharia Law can say that you David cannot eat at Restaurant X since you (and I am assuming) are not Muslim. Or that you cannot drive by their mosque during certain hours. Or the business deal you made with Abdul must be adjudicated using Sharia Law.
ReplyDeleteThe establishment clause refers to the State (the US government) saying that Religion X is the National Religion of the US. This was done in response to the Church of England being the "Official Church of England." It has nothing to do with using a religious doctrine to settle issues between citizens which was the point of the law in Oklahoma.
E
The original idea motivating the Establishment Clause was the Church of England, but it has never been interpreted by the Supreme Court to mean that any form is religious discrimination by the government is constitutional so long as we have no official religion.
ReplyDeleteFrom Cornell University Law School…
"The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion."
http://www.law.cornell.edu/wex/Establishment_Clause
If you want to dispute Cornell Law School as a source, I can give you quotes from other legal scholars A-to-Z.
Any business that offers services to the public may not discriminate on the basis of race, sex, or religion. If the mosque is on a public street, I can drive by there anytime I want. If I sue a Muslim in Oklahoma for breech of contract, the court will decide the case according to the laws of Oklahoma, not Sharia.
I disagree with you about the Jehovah's Witness example. The courts have ruled that a child's right to life takes precedence over the parents' religious beliefs. The state brings medical professionals to the court to testify that the child will die without the transfusion.
--David
David, in France, Muslims block streets contravening laws that say they cannot. The same goes for breeches of contract. I know that this is France and not the US, however, with this ruling, we are heading in the same direction.
ReplyDeleteJehovah's Witness' cases have gone both ways.
I disagree with you. A Muslim may discriminate against anyone they want as it is their religious right. The same goes for honor killing. It is their right.
By the way, last year some Christians were handing our religious materials on the sidewalks of Dearborn Michigan. They were outside the Arab Festival that was going on at the same time. They were arrested. Eventually, they were found not guilty but not after they had spent thousands of dollars in defense. We see Sharia at work in Dearborn every day.
This case unless reversed will move Sharia Law into mainstream America.
I am a non-interventionist. If France wants to have that law, that's their business. If the people of France don't want it, they can elect legislators to repeal it. Hey, that is what I hear in the ad on TV everyday from Huckabee asking for petitioners to repeal "Obamacare."
ReplyDeleteThis ruling does absolutely nothing to establish Sharia in the U.S. It only requires that the amendment cover all religions, not just Islam. Yes, Jehovah's Witnesses cases have gone both ways, because it is generally only in the most extreme cases where the child's life is involved that the courts assert the child's right to life over the parents.
Muslim organizations (or exclusively country clubs in New York) can discriminate on the basis of religion, but not a public restaurant. If a Muslim does an honor killing in this country, he will go to prison. No judge in Dearborn can legally decide a case on the basis of Sharia law.
As I recall, the Christians were arrested for alleged violation of some city ordinance restricting where they may distribute literature. They were found to be in compliance by the court. I am still waiting to see you acknowledge police overreach against OWS protesters. Police interference with First Amendment rights happens all over the country, not just in Dearborn. If a citizen rubs them the wrong way in some insignificant way, some police overreact and arrest them, hit them over the head, or spray pepper spray into their faces as they sit peacefully on the ground. If any of them annoy police in some way, it happens to Christians, Muslims, OWS protesters alike.
If you read the court opinion, it astounds me that you can interpret it as enabling Sharia in Oklahoma. It only held, in accord with established Supreme Court precedence in the Larson case and others, that the amendment must address all religions without denominational preference in its prohibition. If they want to rewrite it in compliance with the court's ruling, it will be constitutional. Of course, it would also be pointless, since already, because of the Establishment Clause, no court in America can legally base decisions on Sharia or any other religion.
--David