Patterico's Pontifications

11/12/2010

Banning the Banning of Sharia In Oklahoma

Filed under: General — Aaron Worthing @ 7:00 am

[Guest post by Aaron Worthing; send your tips here.]

One controversy that has been boiling since the election is over Question 755 in Oklahoma: a proposed state constitutional amendment banning the consideration of Sharia and the law of other nations or cultures generally, in court decisions.  Now, let me start with something that most commenters on the issue don’t seem to bother with very much: the proposed constitutional amendment itself.  It says:

The Courts…, 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 law 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.

So this won sufficient votes to become officially part of Oklahoma’s constitution, and a federal judge has enjoined the state from certifying the election results.  In other words, Judge LeGrange said that they are not allowed to say that this constitutional amendment was ratified.

(Look at the end of this post for a link to a pdf of the opinion and TRO.)

For lawyers that is the first alarm bell that this judge is making a mistake.  I have never heard of a federal judge saying that they are going to pretend that the constitution has not actually been amended unless there was a problem in the voting itself.  What they typically do is enjoin enforcement of the state constitutional provisions that violates the federal constitution.  In other words, the law is there, but it’s a dead letter.  The judge wants to declare that this law hasn’t even been rightfully passed, which is wrong.  If there is a violation of the first amendment’s religion clauses, the correct solution is to enjoin enforcement of the offending part.

And indeed, the whole amendment contains parts that no one could reasonably object to as a matter of constitutional law.  I didn’t include it in the quoted text, but it also amends their constitution to eliminate from the list of courts the “State Industrial Court” and replace it with the “Worker’s Compensation court,” a decision that couldn’t possibly be unconstitutional and indeed probably amounts to no more than a name change.

So that’s the first problem in this ruling.  It also has serious issues with standing.  Based on the case law, the plaintiff doesn’t have standing by virtue of the fact that he is a muslim and thus offended by this whole thing.  That kind of injury is not seen as particularized enough.  But he has a less laughable claim that this will invalidate his will, depending on what the document says.  Since I have not found a copy of it, I will just assume the judge is right on this point.

Getting to the merits, the court goes through the old “Lemon Test” that requires that “the governmental action (1) must have a secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster an excessive government entanglement with religion.”  Of course the continuing vitality of Lemon v. Kurtzman is questionable at best, but let’s assume it applies.

Let’s start with the most dubious claim, that this results in “excessive entanglement with religion.”  You might think that it would be hard to claim that a law that prohibits courts from considering religious law in its decisions represents entanglement. And guess what?  You would right.  This is best described as “disengagement,” not “entanglement.”

So how does the court say it is entanglement?  By accepting this argument by the Plaintiff:

Plaintiff further contends that because the amendment directs Oklahoma’s state courts to make intrusive judgments regarding contested questions of religious belief or practice, the amendment excessively entangles Oklahoma in plaintiff’s faith. Specifically, the amendment forbids state courts from considering Sharia Law in any of its proceedings. Plaintiff asserts that there is no single religious text that all Muslims accept as the exclusive source for what constitutes Sharia Law and, consequently, to comply with the amendment, state courts will be faced with determining the content of Sharia Law.

But that depends on how this constitutional amendment is interpreted.  To me the most natural interpretation is as follows.  The courts cannot cite Islamic law as even persuasive authority.  And maybe, if a person’s private contract or will incorporates Islamic concepts by name, the courts would be required to disregard that concept.  So for instance if a private contract to rent out a ballroom requires the tenant to obey Islamic law while on the premises, the courts might be forced to render that provision a nullity.

But the Plaintiff’s theory of interpretation of the amendment goes even further seeming to argue that the courts will see it as their duty to determine what Islamic law is and even if a provision of a contract or will is facially secular in origin, still nullify it if it is too similar to Sharia (or any other prohibited system of law).  So by the Plaintiff’s proffered interpretation, if person A rents a ballroom to person B, but puts a condition that person B may not play music or eat pork, with no reference to any religion, then B can say to the courts, “he can’t do that.  Islamic law forbids the eating of pork or listening to music.  Therefore this contract contains Sharia law.”  (I am not sure if both statements are actually true under Sharia law—I am just using them as illustrative examples.)  Then the courts would be forced to determine if Islamic law forbids both, and if they do in fact ban both, then they would have to render those contractual terms a nullity.

I consider that interpretation to be wholly unsupported by the text of the amendment.  Indeed it proves too much.  I mean I am no great scholar on Sharia, but I will go out on a limb and guess it is generally opposed to theft, rape and murder.  So does that mean that Oklahoma’s laws against the same are invalid because Sharia law coincidentally agrees?  Does that mean a loan contract that doesn’t include interest is somehow invalid because Sharia law agrees?  Or is that only the rule if one of the parties is Muslim?

Which brings me to another problem, which is that this federal court is seeking to interpret a proposed provision of the state constitution.  Shouldn’t the courts just let the state courts figure out what the amendment means, first, and then let people challenge whether that amendment, as interpreted, is unconstitutional?  In other words, the plaintiff belongs in state court, not federal court.  And that would appear to be an issue of ripeness.  It might very well be the case that if the judge had let the amendment be placed into the state constitution, and let the plaintiff fight it out in state court that the state courts would have said simply that they will only interpret this constitution to prevent the courts from citing sharia law as authority, but where a contract or a will incorporates a sharia concept, even by name, they will honor that private contract or will.  And if that is their interpretation, guess what?  He doesn’t even have standing anymore.

I mean I suppose the District Court could certify the question, but why not give state courts the first crack at this issue instead?

As for the purpose prong of the Lemon test, the Judge relies on a statement by one of the amendment’s authors:

In support, plaintiff cites to one of the authors of State Question 755, Representative Rex Duncan’s, statement that “America was founded on Judeo-Christian principles” and the amendment’s purpose was to ensure that Oklahoma’s courts are not used to “undermine those founding principles,” and Representative Duncan’s further statement that the purpose of the measure was to establish a legal impediment against the “looming threat” of Sharia Law in the United States.

The problem is that as a matter of law, determination of purpose does not go into statements like that.  If that was the case, then the Civil Rights Act of 1964 would be unconstitutional because President Kennedy cited “the scriptures” and The Golden Rule while promoting it:

We are confronted primarily with a moral issue. It is as old as the scriptures and it is as clear as the American Constitution. The heart of the question is whether all Americans are afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated

(And indeed, that quote is on a government website.)  Or for that matter President Lyndon B. Johnson promoted the Voting Rights Act by arguing that this was necessary to save our national soul and that

The time of justice has now come, and I tell you that I believe sincerely that no force can hold it back.  It is right in the eyes of man and God that it should come[.].

So it is simply not the case that every law that is motivated by faith is unconstitutional.  Instead the purpose has to be determined on the face of the law.

Now the law itself says that the courts should not look to the precepts of “other nations or cultures” and then specifies two categories to be singled out: namely international law and sharia law.  Now that very phrase “other nations or cultures” is itself a little dubious.  I mean “other nations” is an obvious enough concept if we take “nation” to be synonymous with “country,” but what about “other… cultures”?  As I noted the other day, the United States has access to many “foreign cultures” all the time.  For instance, suppose a court wanted to cite Apache cultural concepts.  Is that an “other… culture” given that the Apaches apparently were in Oklahoma before Oklahoma was even a U.S. possession.  So that might be a vagueness problem, but again, that might be solved by interpretation.  Indeed, Oklahoma courts might have long defined in statutory interpretation or the interpretation of other amendments what “legal culture” Oklahoma has, allowing them to define “other… cultures” in reference to that, making it in fact crystal clear exactly what the founders of this amendment meant.  So this presents another example of how the first crack at interpreting this amendment is best left to the Oklahoma courts.

And the fact is that Sharia is a major world-wide system of law.  The plaintiff seems to think that because his law is inspired by his God that we can’t refuse to adopt it.  But in fact it is no different from a state forbidding the use or citation of the Napoleonic Code in making decisions.  The fact that faith is underlying the law doesn’t suddenly make it immune to the simple rule that we are allowed to choose our own legal system.

But, one might reasonably say, this constitutional amendment obviously wouldn’t be interpreted to forbid looking to Christian legal tradition.  So you might ask, isn’t that religious discrimination?  Well, here’s the reality.  Our law is based on Christian legal traditions.  I know this goes against trendy thinking in law schools, but that is where it comes from.  Sure, our statutes on murder, for instance, are stripped of any biblical reference, but there can be no mistake that this overwhelmingly Christian nation’s voters are thinking of the edict from the burning bush when they demand that murder be rendered illegal.*  Indeed, our Declaration of Independence declares the right to life to be God-given.  And at every stage of our existence, our lawmakers have explicitly cited their faith.  Besides the Civil Rights statutes I just mentioned, the Thirteenth, Fourteenth and Fifteenth Amendments were ratified at urging of evangelical Christians after a Civil War where our soldiers sang “Glory, Glory, Hallelujah!” as they marched into battle.  Not to mention (again) that our Revolution was justified in terms of God-given rights and even our First Amendment freedom of religion was motivated by the Golden Rule.

So this alleged discrimination among legal traditions is built into our system from the ground up.  This amendment only makes explicit a discrimination that we had been practicing since the birth of this republic, sewn into the fabric of almost all of our laws, including the very constitutional provision that this plaintiff says is being violated.  It would be strange to argue that it is unconstitutional.

So honestly I think this ruling is incorrect.  There are some issues that might arise if the amendment is interpreted a certain way, but the Federal Court should refuse to hear the matter, and dismiss without prejudice saying to the man, “take this to the state courts, let them have a whack at it.  If you are still unsatisfied, then come back to me.”

But while it is premature to call this amendment void, at the same time, it does seem a little foolish.

Now I am no great lover of international law.  I certainly have little sympathy for the idea that because France passed a constitutional amendment providing for X that we should pretend that suddenly our constitution says the same thing.  But there are some legitimate uses of foreign law.  For instance, in U.S. v. Balsys, the Supreme Court discussed the scope of the Fifth Amendment’s privilege against self-incrimination.  In that analysis, they looked at the meaning of the right as it was understood in British law prior to ratification of the Fifth Amendment.  It seems utterly reasonable to presume that the founders, in writing the privilege into our constitution, were incorporating the understanding of that right that existed prior to ratification.  And of course a similar analysis was used by Scalia in declaring that the Second Amendment meant pretty much what it said.  For instance, Scalia pointed out that when British lawmakers wanted to ban guns for Catholics they used the same phraseology “to keep and bear arms.”  That would technically be looking to foreign law.

And where two state constitutions, or a state constitution and the Federal Constitution have similar or identical constitutional provisions, it makes perfect sense for a supreme court to look at how these other jurisdictions have interpreted the same language.  For instance, in Thomas Davies’ classic law review article Recovering the Original Fourth Amendment, the man spends a lot of time comparing and contrasting state constitutional provisions similar to the Federal Fourth Amendment, in order to reach some pretty startling conclusions about what the amendment really meant when it was written.  And even if a different jurisdiction’s interpretation is not direct evidence of the original understanding of that language, it can still be what we lawyers call “persuasive authority”—that is, an argument that is taken seriously, but only if it is ultimately convincing.  There is a proper place for the consideration of foreign law.

I mean I understand the impetus behind this law, and I agree.  The voters didn’t like the attitude that we should be warping our laws and constitution to fit international trends.  That would be wrong.  But in my mind the correct answer isn’t this kind of blanket prohibition.

And in the end its functional result is that the courts cannot cite these laws.  But there is literally nothing you can do to stop a judge from thinking of international law, and wanting to be trendy and follow its sway.  So it seems really doubtful that this will actually change the direction of the courts and instead it would simply drive those views underground.  Without that rule they would be more likely to admit it openly when they follow these forbidden legal traditions, and thus allow others to try to check that tendency.  For instance, Oklahoma apparently uses a system similar to Iowa, allowing the people to remove any judge who rules inappropriately.  Instead of passing a constitutional amendment, doesn’t it make more sense for the voters of Oklahoma to enforce this policy by voting out anyone who violates it.

And while I am not a full-on libertarian, I also believe that when contracting or writing wills, you should be able to invoke whatever law or culture you want, within some limits of reason.  I mean, needless to say, the law should not respect the Indian tradition of burning widows alive on her husband’s pyre, but if a Muslim man wants to follow a no-interest rule based on Sharia when loaning his money to another man, who are we to tell him he can’t?  Much of Sharia is rightfully objectionable to most sane Americans (at least in some interpretations of Sharia), but not every doctrine is evil.  Some of it is the kinds of differences of opinion that the law should respect, such as whether interest can be charged, or whether pork can be eaten.

So if I lived in Oklahoma, I would have voted against this amendment.  But if I was a judge, I would have dismissed this suit.  Baring some surprising interpretation of the amendment, it does not appear to violate the federal constitution.

—————————–

* To be clear, I am not saying that opposition to murder is a uniquely Christian concept.  When Christians vote to make murder illegal, they do so informed by a morality shaped by that faith.  Therefore you cannot pretend it is not “motivated by faith.”

———

You can read the order and opinion granting the temporary restraining order, here:

Oklahoma Sharia TRO

Update: Slight edits.

[Posted and authored by Aaron Worthing.]

140 Responses to “Banning the Banning of Sharia In Oklahoma”

  1. For your educaion, here are the six principles of Sharia:

    1. The right to the protection of life.
    2. The right to the protection of family.
    3. The right to the protection of education.
    4. The right to the protection of religion.
    5. The right to the protection of property (access to resources).
    6. The right to the protection of human dignity.

    Do you see stoning women in there? The term “shariah law” is a misnomer, because shariah is not law, but a set of principles. To Muslims, it’s the general term for “the way of God.”

    Books of interpretive writings (called fiqh) about how to act in accordance with the way of God are differing opinions, contradictory rules and scholarly debates. For example, stoning for adultery is a punishment that appears in fiqh, as well as early Judaic law. But it does NOT appear in the Qur’an. Assuming all Muslims follow medieval Islamic rules today is like assuming that all Catholics follow 9th century canon law. Islam, like Christianity, has changed many times over the centuries, and it continues to change. Focusing only on the nutcases who advocate a return to medieval times is ignoring the vast majority of modern Muslims, despite what your ignorant right-wing hate mongers have told you. (-Sumbul Ali-Karamali is an attorney with an additional degree in Islamic law).

    Anyway, to believe that the US is threatened by a 1% US Muslims population is more than bigoted, it’s downright cowardly and fearful.

    Amazing how the hate has escalated since the guy you voted for twice said:

    “The enemy of America is not our many Muslim friends. It is not our many Arab friends … The terrorists practice a fringe form of Islamic extremism that has been rejected by Muslim scholars and the vast majority of Muslim clerics; a fringe movement that perverts the peaceful teachings of Islam.” – G.W. Bush 9/20/01

    He actually had it right. How did the fear, hate, and ignorance escalate since then Turn on Fox News and find out.

    W (9df40f)

  2. Are the 10 commandments not the precept of another culture? Maybe you can say that americans have adopted them. But then is not the islamic law developed by an american muslim a precept or our nation or culture?

    imdw (1d1dec)

  3. W, so you can’t read. No surprise.

    SPQR (26be8b)

  4. I understand what the Oklahoma legislators were trying to do. For the record, I don’t agree with it, but that’s beside the point. The point is that they missed their mark by drafting an amendment that is too broad and thus, unconstitutional.

    Suppose that an Oklahoma business has a contact with an international company, and the contract states that the choice of law regarding contractual disputes shall be English law. The way the amendment reads, the Oklahoma court basically disregards the choice of law provisions of contracts, negotiated by two private citizens. Or, put more bluntly, government interference with contract.

    But the great joke of the Oklahoma Law is that many of the concepts of our common law are derived from “international” law and the laws — both religious and codified — of cultures which preceded ours.

    In other words, as one Okie professor noted:

    “I would like to see Oklahoma politicians explain if this means that the courts can no longer consider the Ten Commandments. Isn’t that a precept of another culture and another nation? The result of this is that judges aren’t going to know when and how they can look at sources of American law that were international law in origin.”

    Touche.

    And for what is all this being done? Islamophobia? Makes them Okies look like jackasses.

    Kman (d25c82)

  5. William Yelverton should stick to strumming the lute. Once he gets outside of musical instruments, he proves himself to be a bigoted moron, every single time. I wonder what a google search of his last comment would produce.

    JD (d5e4d1)

  6. And, no kidding, if you were to substitute “Sharia” with “Talmudic” in the text of that Amendment, can you imagine the outcry?

    Kman (d25c82)

  7. It is not just islamophobia. It is racism, intolerance, ignorance, fear, and sexism too.

    JD (d5e4d1)

  8. who knew electing a foreign black muslim would drive white people so crazy?

    imdw (53b665)

  9. So if I understand our two ranting and breathless dissenters here, what France and the Swiss are in the process of enacting makes them racist Islamaphobes. I thought the Euros were much more sophisticated than us bitter, bible/gun clingers?

    Makes them Okies look like jackasses

    Projection. thy name is kmart.

    Dmac (1cf5d6)

  10. It is racism, intolerance, ignorance, fear, and sexism too

    You forgot to add Kyoto.

    who knew electing a foreign black muslim would drive white people so crazy

    Just as long as he’s not Jewish, imadouchebag’s OK with it.

    Dmac (1cf5d6)

  11. “So if I understand our two ranting and breathless dissenters here, what France and the Swiss are in the process of enacting makes them racist Islamaphobes”

    Yes. This is news to you?

    “I thought the Euros were much more sophisticated than us bitter, bible/gun clingers?”

    The world fails to conform to your simplistic explanations, and it is not your fault.

    imdw (53b665)

  12. “Just as long as he’s not Jewish, imadouchebag’s OK with it.”

    I thought it was kind of surprising that the white house had never had a seder till Obama. Then again, I don’t know if any presidential campaigns had one either. It’s a nice touch.

    imdw (53b665)

  13. Why do you insist Teh One is a Muslim, dimwit?

    JD (d5e4d1)

  14. So, William Yelverton, iamadimwit, and kmart are in favor of allowing US courts to apply Sharia law. Just so we are clear.

    JD (d5e4d1)

  15. How many teabaggers like JD even have a clue of what Sharia means? uh…. none.

    W (9df40f)

  16. W

    > Do you see stoning women in there?

    I believe those who do that would file it under protection of the family (adultery destroys families), protection of religion, and maybe even protection of human dignity.

    > Assuming all Muslims follow medieval Islamic rules today is like assuming that all Catholics follow 9th century canon law.

    And who is doing that?

    > Focusing only on the nutcases who advocate a return to medieval times is ignoring the vast majority of modern Muslims, despite what your ignorant right-wing hate mongers have told you.

    The “nutcases” being of course the entire nations of iran, Pakistan, Saudi Arabia, and so on.

    > Anyway, to believe that the US is threatened by a 1% US Muslims population is more than bigoted, it’s downright cowardly and fearful.

    How many times does a judge have to tell a husband it is okay to beat his wife before we are rightfully concerned? How many times do liberals have to propose anti-blashemy laws?

    Imdw

    > Are the 10 commandments not the precept of another culture

    Um, the 10 commandments are in Christian culture. You do know that, right?

    Kman

    > The point is that they missed their mark by drafting an amendment that is too broad

    Overbreadth doesn’t apply here.

    > Or, put more bluntly, government interference with contract.

    Which is only a problem if it is applied retroactively. And, its not clear that the amendment will be interpreted that way, or that it was meant to be.

    And please you are not so dumb as to buy that boilerplate spin that imdw already gave us.

    By the way, I find it funny kman that this time you are in support of religiously motivated law. I mean what do you think sharia says about gay rights, for instance? Should those views be respected?

    But as you revealed a few threads back, you don’t actually look into these issues. your entire logic is “righties want this, so I am opposed.”

    Aaron Worthing (e7d72e)

  17. btw, anyone else notice that Kman’s entire comment makes it clear that he has not read my post at all, except maybe the language of the amendment itself?

    he argues that this would invalidate contract provisions incorporating sharia law. but as i point out it is not obvious that this amendment would do so. so how does he counter my argument? does he prove it definitely will? nope. he says nothing. why? because he didn’t even read my argument.

    But of course, Kman has a history of that sort of thing.

    Aaron Worthing (e7d72e)

  18. William Yelverton – why do you want my nutsack in your mouth? Your begging is becoming unseemly. The idea that you know what Sharia is, in practice, is laughable, given your comments. Now, run along and make some veggie paella for teh kitteh.

    JD (d5e4d1)

  19. @2: “Are the 10 commandments not the precept of another culture?”

    Oh, YOWZAS! I never thought of that. So I guess now Oklahoma has to invalidate all laws dealing with murder and theft. Or…in a sane universe, they could keep those laws, and just not consider the explicitly religious parts — like honoring God, or keeping the Sabbath holy. Which, I imagine, they weren’t doing anyway.

    Seriously — exactly what IS your point here? One does not, as Aaron pointed out, need to cite religious traditions to come to an agreement with them on some matters. I’m fairly sure Oklahoma has laws against murder and theft and the like that can be cited in those cases without turning to the Ten Commandments.

    “Maybe you can say that americans have adopted them.”

    Maybe. But why should you have to?

    “But then is not the islamic law developed by an american muslim a precept or our nation or culture?”

    Umm…no. No, it’s not. One might be able to make a case that the Ten Commandments, in its broadest form, constitutes a “precept” of our nation — because we trace part of our founding culture’s heritage back to the Biblical Jews, and because the Christians of our founding culture would have considered the Ten Commandments binding on them. (Even then, I would be suspicious of such an argument, but I concede it could be made.) However, Islam was not a part of our heritage in the same way. And that should be perfectly obvious to anyone with a brain in their head, without needing it spelled out for them.

    Seriously, you try to draw an equivalence here between the Ten Commandments and Sharia law — but fail to realize that a) some of us have no problem saying that NEITHER should be admissible in a court of law, as they are not part of the American legal code — and b) that when it comes to the basis for the equivalence you want to draw, one of these things is not like the other. Your post is therefore wholly without merit.

    Demosthenes (ca616f)

  20. AW:

    Overbreadth doesn’t apply here.

    Well, it does, and you say as much yourself when you refer to it has a “blanket prohibition”.

    Which is only a problem if it is applied retroactively. And, its not clear that the amendment will be interpreted that way, or that it was meant to be.

    It’s prerty stark language to me — ” =the courts shall not consider international law”. No wiggle room. So my contract, which has British law in the “choice of law” provision, will not be honored in a Oklahoma court.

    By the way, I find it funny kman that this time you are in support of religiously motivated law.

    What makes you think I’m in support of Sharia law? I’m in support of individuals being able to execute their own contracts without government interference. So are most righties, by the way.

    Kman (d25c82)

  21. “Um, the 10 commandments are in Christian culture. You do know that, right?”

    If I pointed out that they predate christ and are Jewish, would you consider that an “other culture” in the way we are being asked to declare that islam is an “other culture” ?

    For me the fundamental flaw that this amendment has is in declaring problems with “other cultures.”

    imdw (604a8a)

  22. “However, Islam was not a part of our heritage in the same way”

    But it is the part of the heritage of an american muslim.

    imdw (604a8a)

  23. Kmart is just being a contrarian on this one. It is transparent.

    When was the last time someone was charged with breaking one of the Ten Commandments?

    JD (d5e4d1)

  24. Sigh. This is the problem with Patterico’s policy (though it is his blog). The trolls are just being their usual selves.

    Eric Blair (c8876d)

  25. I suspect if there was popular support for things like honor killings, and the stoning of homosexuals, practices which the contrarian trolls are advocating for, the legislature could address that. Essentailly, dimwit and their Ilk are arguing for enforcement of laws based on where someone was born, or what religion they are, as opposed to the laws of their jurisdiction. It is pure folly.

    JD (d5e4d1)

  26. @21: How does the Jewish origin of the Ten Commandments interfere with their being a part of Christianity? Christ, if I recall, was a Jew. So were his followers. Not that I really want to walk the theological debate road, but now you’re just being silly.

    And @22: “Our heritage,” as a nation, does NOT mean “the combined heritage of each and every citizen we have ever had or ever will have.” It is a question of where our dominant culture comes from, especially our dominant culture at the time of founding and legal formation/codification. Unless you mean to suggest that Islam is a part of our national heritage in the same way and to the same degree as Christianity, your point is irrelevant. If you do mean to suggest that, you are obviously wrong. Either way, you lose.

    Demosthenes (ca616f)

  27. Kmart is just being a contrarian on this one. It is transparent.

    Actually, I’m agreeing with AW in part on some of what he writes (like how broad the amendment is). He always assumes I’m being contrarian, and it’s funny to watch him strike back at nothing.

    Kman (d25c82)

  28. “It is a question of where our dominant culture comes from, especially our dominant culture at the time of founding and legal formation/codification. ”

    So then this is just an exercise in enlisting the state in enforcing cultural supremacy by the dominant group?

    imdw (7b0243)

  29. Demosthenes – save your breath. THey are not discussing in good faith. Never have. Never will.

    JD (d5e4d1)

  30. Kman

    > Well, it does, and you say as much

    No it doesn’t. and I didn’t say it did, in fact I said the opposite. I said the amendment was too broad, but I did not say it was a constitutional problem. The overbreadth doctrine does not apply to religion clause cases except at most when it chills religious expression which is not relevant here. I said it was a policy problem. Which you would know if you actually READ WHAT I WROTE.

    > It’s prerty stark language to me

    Proposition 8 was equally stark but the supreme court of cali said it was not retroactive.

    And at worst then it requires that the courts would hold it unconstitutional as applied, when applied retroactively. But that doesn’t prevent it from being the rule going forward. Because once again, OVERBREADTH DOESN’T APPLY HERE.

    > What makes you think I’m in support of Sharia law?

    Your words. Mind you I am sure as a policy you are opposed, but you are supporting this ruling.

    imdw

    > If I pointed out that they predate christ and are Jewish, would you consider that an “other culture” in the way we are being asked to declare that islam is an “other culture” ?

    You mean if you pointed out the obvious? Nope. A thing can be of more than one culture at the same time. I mean that is like saying Spaghetti is not in american culture. just because it started somewhere else doesn’t mean it can become part of our culture.

    JD

    > When was the last time someone was charged with breaking one of the Ten Commandments?

    Well, arguably that is what we did with OJ Simpson. Though without citation to the commandment itself.

    Aaron Worthing (e7d72e)

  31. The U.K. has sharia courts.

    I am not in favor of them here. Small wonder that W, imdw and Kman want them. Honor killings, wife beating. clitorectomies, hand loppings, gay ecexutions and the like all sound like things our supposedly tolerant liberal friends would support.

    A phobia is an irrational fear. After bombing and suicide attacks, and public threats of more, I fail to see why fear of muslim extremists is irrational.

    daleyrocks (9896ff)

  32. Demosthenes – the problem I have with this law is that it would prohibit a company from contracting with an overseas supplier to have their contract disputes resolved according to the precepts of Saudi law. Or Thai law. Or Chinese law.

    This is a standard everyday practice.

    I don’t understand why two parties who want to do business can’t agree on the rules to be used to interpret their contract.

    (Or, for that matter, why someone who is deeply religious couldn’t say that his property will pass according to hindu inheritance rules, another practice which would seem to be banned by this law).

    I understand the intent of the voters wasn’t to ban these things – it was to ban the practice of using contemporary developments in international law as an aid to interpreting US law, and these were just collateral damage.

    But the harm done by this collateral damage is far greater than the good done by the ban.

    aphrael (9802d6)

  33. Hi – I don’t know about the plaintiff’s case, because I haven’t looked into it. However, I not only would not have voted for the amendment, I think the amendment creates a big mess that the courts are going to be forced to clean up.

    First – as you noted, there are NUMEROUS legitimate reasons why courts do refer to and need to be free to refer to foreign law. For example, international businesses enter into contracts and for purposes of business certainty, they need to specify what jurisdiction’s laws are going to govern any disputes regarding the contract. Sometimes, they end up litigating here in the U.S., but they’ve specified another countries laws in their contract. This is a totally legitimate business event that occurs all the time.

    Second – we have no need for an amendment like this. What is happening in England is not threatened here. I know everyone is worried about this one New Jersey decision, but it is not what people seem to think. I’ve written about it on my blog. All that decision did was deny a restraining order against this woman’s ex-husband, on the theory that the ex did not pose a future threat to his ex-wife. The decision did not mention Sharia Law, but did seem to consider Islamic beliefs in reaching the conclusion that the guy was not a threat. And THE DECISION WAS REVERSED – the appellate court was very clear that cultural beliefs do not play any role in whether a crime has occurred sufficient to warrant issuance of a restraining order.

    Third – Although I can’t find any cases other than this New Jersey case where Sharia Law was used in a negative way, I can find lots of cases where Sharia Law was considered in beneficial ways. Sharia Law can be used by a mother to explain why her ex-husband should not be allowed by the Family Court to take their kids “on vacation” out of the country. It can be used to justify a petition for asylum. It can be used to determine a woman’s inheritance rights or her right to alimony. It can be used to determine eligibility for immigration based on marital status (specifically, to deport people who lied about being married). It can be used to establish motive for an honor killing by a family member.

    Fourth – The OK amendment says the courts can’t “consider” foreign law. That would prevent all of the beneficial consideration of foreign law I just mentioned. A lot of people say, well that’s not really what they intended. But it’s the words as written that matter, not what was intended. Because we have the Rule of Law here. Which is why we never needed this amendment in the first place.

    Fifth – Now the courts have to extract OK from this problem it’s gotten itself into. And the people who passed the amendment are going to want the courts to do just that (oops, we didn’t mean a family court cannnot consider the implications of Sharia Law when deciding custody issues). So the amendment was passed to restrict the courts and now we’re going to rely on the courts being judicially active to fix the mess created.

    Sarah (c7f910)

  34. “I am not in favor of them here.”

    The UK allows religious arbitration. US law tends to favor arbitration. I would prohibit arbitration on the basis of its oppressiveness, rather than the source of law that inspires it. So this would cover ridiculous rulings concerning domestic violence whether they came from christian or islamic, or secular misogyny. It would also cover oppressive clauses that prevent consumers from getting redress from frauds, for example.

    But perhaps this is too radical.

    imdw (3ac9fb)

  35. “Fourth – The OK amendment says the courts can’t “consider” foreign law. That would prevent all of the beneficial consideration of foreign law I just mentioned.”

    So would an oklahoma judge not be allowed to “consider” Nazi gun control laws in ruling on an american gun control law?

    imdw (3ac9fb)

  36. @28: What would lead you to that conclusion? This amendment — I believe, and correct me if I’m wrong — does not enshrine the Ten Commandments in state law, or force courts to consider them and/or the principles behind them in making decisions. It merely bars the consideration of Sharia law.

    @29: I know. It’s more about my satisfaction than theirs.

    @32: That seems like a legitimate objection. For the record, I have not stated a position on the amendment in question, and the position you state here (and, I believe, Aaron stated above) seems to me to be a quite compelling argument against the objection. I was merely responding to one of the culture trolls and his/her somewhat broken logic about the Ten Commandments and Judeo/Christian culture vis a vis Sharia law.

    Demosthenes (ca616f)

  37. Sorry — mistyped, meant to say “compelling argument against the amendment.”

    Demosthenes (ca616f)

  38. “It merely bars the consideration of Sharia law.”

    It says that you can’t go to precepts of other cultures, and you said that this would exclude cultures that are not the american dominant culture. Like Muslims, or Jews.

    imdw (3ac9fb)

  39. The overbreadth doctrine does not apply to religion clause cases except at most when it chills religious expression which is not relevant here. I said it was a policy problem.

    Okay, so I’m half agreeing with you, in that I say its overbreadth renders the amendment unconstitutional AND serves as bad policy.

    It’s overbroad in violation of Lemon in that “Sharia Law” is so nebulous that it’s difficult to tell what is being circumscribed. You can’t even get Muslims to agree on what it is. And some of it arguably overlaps (if not actually serving as the genesis of) Judeo-Christian legal concepts.

    Kman (d25c82)

  40. imdw – Hi. Under the amendment, the court could not consider Nazi laws.

    I’m new here so I’m not entirely sure where you’re going with this. In what context are you thinking a court might have considered Nazi laws prior to the amendment?

    In general, I do not share concerns from either side of the political spectrum about judicial activism or reference to foreign law. Yes, I have seen judicially active decisions. But judicial activism can be in any direction (conservative or liberal or libertarian), and I haven’t found a correlation between the decision being judicially active and its having either a “good” or “bad” outcome based on my own political preferences.

    For the most part, when courts refer to foreign law, they do so for good reason and in limited measure. Maybe the parties asked the court to apply foreign law (per their contract or some other document). Sometimes courts consider what was going on in Europe to determine what the Founders intended when they wrote some language. Sometimes they refer to anglo-saxon traditions to determine what our fundamental values are (such as what is cruel and inhuman punishment, or what rights were “retained by the people,” etc). Sometimes, there is a question that is unanswered in existing US law, so rather than just throw their hands in the air, judges look at how other countries have approached the problem to try to find the best approach.

    None of this is problematic to anyone. I know there’s been a lot of people who have made a living selling books about the threat of judicial activism. I’ve only read Men in Black myself, and it was not persuasive. I’ve not found any judicial activism alarms particularly persuasive, once you look into the actual cases being cited.

    I know that people are worried about what is going on in England, where the official legal system is allowing a parallel Sharia legal system to exist. That would be wrong, and were it to happen here, we should fight at all costs. But it just isn’t happening here.

    This isn’t a case where OK threw the baby out with the bathwater. There was never any bath water to get rid of. They just opened the door and tossed the baby out, to protect against the possibility of future bath water needing to be disposed.

    Sarah (c7f910)

  41. This isn’t a case where OK threw the baby out with the bathwater. There was never any bath water to get rid of. They just opened the door and tossed the baby out, to protect against the possibility of future bath water needing to be disposed.

    Best. Metaphor. Ever.

    Kman (d25c82)

  42. Aaron Worthing,
    Tell us about your personal relationship with Christ and how it affects your view of others who don’t share the same beliefs.

    W (9df40f)

  43. “I’m new here so I’m not entirely sure where you’re going with this. In what context are you thinking a court might have considered Nazi laws prior to the amendment?”

    In seeking to strike down a gun control law, the court would note that the Nazis had gun control.

    “In general, I do not share concerns from either side of the political spectrum about judicial activism or reference to foreign law”

    Either side?

    “None of this is problematic to anyone.”

    I agree. I think this is just more populist cultural supremacy and xenophobia.

    imdw (688568)

  44. Kman

    > It’s overbroad in violation of Lemon in that “Sharia Law” is so nebulous that it’s difficult to tell what is being circumscribed.

    Proving again you didn’t read what I wrote. Why don’t you actually read my post before commenting in the future?

    Aaron Worthing (e7d72e)

  45. The first person sentenced to have his hand cut off will disagree with this federal judge’s ruling.

    Jim (844377)

  46. imdw – Damn! I never should have said “either side.” It is in fact one of my missions in life to move beyond the left-right paradigm in favor of a more Nolan Chart-y approach. :-) I just meant that usually by the words “judicially active” people mean “a case where I didn’t like the result.” So depending on the specific case, people are either ardently opposed to the judicial activism therein or secretly in favor.

    Sarah (c7f910)

  47. Kman

    And, btw, lemon has never applied an overbreadth approach, except again on pure religious expression. and lemon is questionable as precedent.

    W

    > Tell us about your personal relationship with Christ and how it affects your view of others who don’t share the same beliefs.

    First, objection: relevance.

    Second, it depends on what the belief is.

    If you believe that Allah is the one true God, I disagree but that’s all it is.

    On the other hand, if you believe that it is okay to kill a man for insulting your faith, then my view of you is that you are a barbarian. What I care about primarily is whether you believe in and do good things. What exact faith you believe in is secondary. I mean, mind you, I do believe I have found the one correct faith and all others are wrong to varying degrees. But that’s just being wrong. It happens.

    Some people obsess with converting others. while i am always happy to show the way to christ if someone wants it, i generally don’t go around trying to convert people.

    Aaron Worthing (e7d72e)

  48. Bible orders: kill infidels (2 Chronicles 15:13):
    “anyone who refused to seek the Lord, the God of Israel, would be put to death—whether young or old, man or woman.”

    Bible orders: kill those who worship differently (Exodus 22:20):
    “He that sacrificeth unto any god, save unto the LORD only, he shall be utterly destroyed.”

    Bible orders: kill non-virgins (Deuteronomy 22:20-21):
    “if this thing be true, and the tokens of virginity be not found for the damsel: Then they shall bring out the damsel to the door of her father’s house, and the men of her city shall stone her with stones that she die”

    W (9df40f)

  49. People who believe that [crud] should be banned by the Constituion

    [Caught in filter for a curse word. curse word replaced to avoid the filter.]

    W (9df40f)

  50. W

    your first quote describes an event, not a command.

    your second quote is a mistranslation. it says they shall die. it doesn’t say we shall kill.

    as for the last quote, yep, its barbaric. and utterly not followed by modern jews or christians. and we can have an interesting discussion why not. but what is the relevance of these unenforced edicts?

    Oh right, you hate christianity generally and so on.

    Btw, just recently a woman in iran was sentenced to be stoned for adultery. there was worldwide outcry and they decided it would be barbaric to stone her to death.

    so now they plan on hanging her.

    So spare me the theoretical arguments about Christianity and Judaism.

    Aaron Worthing (e7d72e)

  51. Willie,

    If you actually understood the Bible, you’d realize that many of the Old Testament passages you try and cite as evidence were superceded by Christ’s teachings; of which there are 2 commandments:

    1) Love God first, with all of your soul and being and put no other before Him

    2) Love your neighbor (fellow man) as you love yourself.

    Your false equivalence is invalid, as most multi-culti relative-morality tropes are.

    Now, you’re free to go back to the Alinskyite tactic of trying to paint religious folks as hypocrites.

    Just let me remind you that in doing so, you show yourself as foolish, since the religious among us, at least most Christians, realize we are all sinners and can never hope to measure up to God’s measure of how we should be living; but can only be graterful for the graces of His mercy.

    Carry on.

    Bob Reed (5f2db5)

  52. Oh no…. it can’t possibly mean what it says… it MUST be a translation error or “taken out of context”. Yes, too barbaric. The Bible, can’t possibly mean what it says.

    W (9df40f)

  53. Oh and Willie, why do you always try and criticize the old testament? Do you have a problem with Joooooos?

    Aren’t they eligible for the usual and customary moral equivalences and situational ethics that make “anything goes!” multi-culturalism so easy to adapt to whatever talkin point you wish to underscore in any given moment?

    I guess Orwell was right about you lefties; some animals at the farm are simply more equal than others.

    Bob Reed (5f2db5)

  54. Bob Reed,
    The 10 Commandments ARE old testament.

    Jesus demonstrates approval of the law and the prophets. He has not the slightest objection to the cruelties of the Old Testament. “Do not think that I have come to abolish the law or the prophets. I have come not to abolish but to fulfill. Amen, I say to you, until heaven and earth pass away, not the smallest part or the smallest part of a letter will pass from the law, until all things have taken place.” – Matthew 5:17

    “All scripture is inspired by God and is useful for teaching, for refutation, for correction, and for training in righteousness…” 2 Timothy 3:16

    “Know this first of all, that there is no prophecy of scripture that is a matter of personal interpretation, for no prophecy ever came through human will; but rather human beings moved by the Holy Spirit spoke under the influence of God.” – 2 Peter 20-21

    Jesus criticizes the Jews for not killing their disobedient children according to Old Testament law. – Mark.7:9-13 “Whoever curses father or mother shall die” – Mark 7:10

    W (9df40f)

  55. W

    > it MUST be a translation error or “taken out of context”.

    yes, you were caught cherry picking quotes out of context or based on disputed translations. and?

    And even if that was what the bible said, so what? that is not what modern christians and, as applicable, jews, say. But the hanging of that woman for adultry, is still on the calender.

    And even if you could prove that sharia law was enlightened and all that, THAT DOESN’T MEAN THAT WE HAVE TO RECOGNIZE IT. We are allowed to pick what legal system we have, and to exclude all others. and if you don’t like it, your appeal is to the voters, not the courts.

    Aaron Worthing (e7d72e)

  56. W is right. We have nothing to fear from Muslims. It’s probably those [f—ing] Amish who are flying planes into buildings.

    [Edited for language and rescued from the filter. –Aaron]

    Kevin Stafford (abdb87)

  57. Willie,

    Jesus uses the terms “death” and “die” in reference to death of the immortal soul; that they will not enjoy eternity existing near God. To try and characterize that any other way only firther reveals your lack of a true understanding of Christianity and Christ’s message.

    Of course he didn’t come to abolish the laws and the scripture, writings based on the prophets of old, but to fulfill them; to cement the covenant of God with his people.

    But the ability to undestand the wisdom contained in the Bible and Christ’s teachings are impossible for those without faith. Pearls before swine and such.

    And I think you know which part of that construct applies to you…

    Bob Reed (5f2db5)

  58. Oh good Allah. William Yelverton – tell us about your personal relationship with plagiarism, ignorance, and bigotry. Yellie seems intent on making sure dimwit is only the 2nd most Mendoucheous twatwaffle around here.

    JÐ (306f5d)

  59. It’s an all right law, but it’s not going to change much. A judge won’t be able to cite to Sharia law when he’s spewing dicta, but you can’t control what goes on inside a judge’s head. They’ll still be able to make decisions based on Sharia law if they want to, they just won’t be able to say that they did.

    Dave Surls (c8b3e3)

  60. William Yelverton – tell us about your personal relationship with plagiarism, ignorance, and bigotry

    heheheheh

    Dustin (b54cdc)

  61. Dave

    > They’ll still be able to make decisions based on Sharia law if they want to, they just won’t be able to say that they did.

    Exactly, which is in some ways worse, because you lose transparency. i mean if they think they can explicitly cite sharia or any of the other forbidden foreign law, then the voters would be put on notice and they can be voted out in the next retention election. but if it goes underground, the situation is murkier.

    Aaron Worthing (e7d72e)

  62. Do you think that now all those oklahomans are going to worry that their judges are secretly halal? Oh man you made my day.

    imdw (3ac9fb)

  63. but if it goes underground, the situation is murkier.

    Well, it already IS underground, as exemplified by the fact that no Oklahoma opinion has been decided on the basis of Sharia law. Which is why it must be stopped.

    Also, there’s a boogeyman under my bed.

    Kman (d25c82)

  64. Kman

    > exemplified by the fact that no Oklahoma opinion has been decided on the basis of Sharia law.

    you know, because that’s what good governance is about. you wait until its a problem and then address it, instead of, you know, addressing it ahead of time. *rolls eyes*

    Aaron Worthing (e7d72e)

  65. The idea behind the law is right, but it’s not going to have much practical effect.

    The way to keep the ideology of Muslims, Communists, Nazis and Liberal Democrats out of government is to keep members of those groups out of government.

    If you don’t want Sharia law in this country, then don’t vote for Muslims.

    I won’t. If you’re a Muslim, I will NEVER vote for you. Not ever. You’re automatically disqualified. That’s the way to do it.

    Dave Surls (c8b3e3)

  66. who knew electing a foreign black muslim would drive white people so crazy?

    So, you’re admitting that he’s disqualified from being President of the United States!

    AD-RtR/OS! (413a4e)

  67. you know, because that’s what good governance is about. you wait until its a problem and then address it, instead of, you know, addressing it ahead of time *rolls eyes*

    Ah, yes. A pre-emptive strike on Sharia law which is coming to overtake our courts, starting in Oklahoma.

    Well done.

    Also the Pleadians, a race from another galaxy, are coming to enslave the human race… so, you know, I hope the Oklahoma legislature is on top of that and won’t wait until the last minute. Because you know how them farkin’ Pleadians can get.

    Kman (d25c82)

  68. Adopting Foreign Cultural Practices:

    Sutee would help the insolvency problem over at Social Security and Medicare.

    AD-RtR/OS! (413a4e)

  69. Those who think it’s merely paranoia should agree that the law is hardly a problem, right?

    Sharia is quite horrible, after all. If it’s horrible and not likely to occur here, that’s nice, but apparently the OK law did nothing harmful.

    Of course, these are the same people who say this about every looming problem.

    Dustin (b54cdc)

  70. Of course, these are the same people who say this about every looming problem

    The “looming problem” isn’t Sharia Law, which really hasn’t taken hold and — I’m going to go out on a limb here — probably won’t… ever, especially in Oklahoma.

    Rather, the “looming problem” — which HAS taken hold (at least in Oklahoma) — is the notion that a government can start target a particular religion for disfavorable treatment. That should concern every American.

    Kman (d25c82)

  71. Well, they disfavor Christianity every Christmas “Happy Holiday Season”, and that doesn’t seem to concern you.

    AD-RtR/OS! (413a4e)

  72. Kman, you’re wrong.

    Sharia easily could take hold if some isolated judge made the wrong move. That would be wrong, and you seem to even recognize this. So you support the law, and just want to complain that it’s somehow targeting Islam for disfavorable treatment.

    The latter is paranoia. You’re projecting this paranoia.

    And yes, folks like you would have flipped out had we started a terror watch list and kicked a a few guys out of flight school because they were associated with a radical Islamic cult, on 9/10/2001. No doubt about it.

    You say this problem of targeting religions for treatment has taken hold in Oklahoma, but it hasn’t… you’ll continue to be paranoid about fake problems while condemning solutions to real ones.

    We need to proactively prohibit Sharia law in particular.

    Dustin (b54cdc)

  73. @38: “It says that you can’t go to precepts of other cultures…”

    Really? Show me where it says that. It says Oklahoma courts are barred from considering international law, sure. It says Oklahoma courts are barred from considering Sharia law, sure. But where does it say anything about “precepts of other cultures”? Precepts of other NATIONS is a quite different thing from precepts of other CULTURES. I want the quote. Also, there’s this gem:

    “…you said that this would exclude cultures that are not the american dominant culture. Like Muslims, or Jews.”

    Actually, if you go WAY back up to my VERY FIRST COMMENT in this thread (#19), you’ll see that I made my initial point on non-cultural grounds. I think the intent of the amendment is fairly clear: it means to say that Oklahoma courts are not allowed to consider foreign or Sharia law in rendering their decisions, and therefore it has nothing whatsoever to do with culture. I also said, in that same post, that I was suspicious of any argument which would make the Ten Commandments a part of American jurisprudence. You have given the rest of the thread an excellent example of why my suspicions remain justified. When you start talking about law as a matter of culture, and you do so in a pluralistic nation like the United States, the end result will be the disintegration of law…as everyone tries to make sure their culture “counts.”

    @67: Since we have some evidence that Sharia law has been applied in an American court to achieve an outcome that is decidedly at odds with an American sense of justice, and no evidence whatsoever to support the existence of alien races, your example is (of course) really, really dumb.

    Demosthenes (b04fc5)

  74. “Really? Show me where it says that.”

    Dude, AW quoted it:

    “The courts shall not look to the legal precepts of other nations or cultures”

    Chill.

    imdw (2020d4)

  75. “Sharia easily could take hold if some isolated judge made the wrong move.”

    Oh man. Just a slip of the fingers…

    “Really? Show me where it says that.”

    Dude, AW quoted it:

    “The courts shall not look to the legal precepts of other nations or cultures”

    Chill.

    imdw (a544ba)

  76. “Rather, the “looming problem” — which HAS taken hold (at least in Oklahoma) — is the notion that a government can start target a particular religion for disfavorable treatment.”

    Kman – Pretty funny. While you and imdw are screeching about discriminating against a religion, the rest of us are talking about avoiding inserting religion into a set of laws. That’s the separation of church and state thingee you were claiming Christine O’Donnell did not understand in that Delaware debate. The amendment says nothing about the free practice of religion. It says Sharia practices should not be used to decide matters of law in U.S. courts. Why can’t you intolerant libs make up your minds what you want instead of just being being reflexively oppositional in each post?

    With respect to “Islamophobia'”, the media in the country certainly isn’t. They are afraid and they admit it. They will not publish cartoons with the likeness of Mohammad or print certain stories regarding terrorism or the history of Islam out of fear of the harm that will come to their employees in retaliation and have freely admitted it. That is not a phobia or irrational fear, that is real fear. Wake up morons.

    daleyrocks (9896ff)

  77. Sharia easily could take hold if some isolated judge made the wrong move. That would be wrong, and you seem to even recognize this.

    I doubt there’s been a case in Oklahoma in the past ten years that even conceivably hinged on Sharia law. And even if there was, and a judge “made the wrong move”, it probably wouldn’t take hold so as to change Oklahoma law.

    What do you think is going to happen? Some criminal court judge is going to say “Ah, screw it. I’m going to sentence this defendant in accordance with Sharia law”? Do you REALLY think something like that will happen?

    And by the way, if this is such a “real” problem, why has it taken 10 years since 9/11 (when presumably, you all got terrorized in the literal sense of the word) for Oklahoma to do something about this?

    Demos:

    Since we have some evidence that Sharia law has been applied in an American court to achieve an outcome that is decidedly at odds with an American sense of justice….

    Where? In what case? In what American court?

    Perhaps Sharia law has been applied in some American court, but I want to see how such a case is “decidedly at odds with an American sense of justice”, so I’m going to have to insist on a citation.

    Kman (d25c82)

  78. imdw – Do you think if a muslim took out a mortgage loan and then refused to pay the interest and then sued his bank to prevent it from foreclosing under the grounds that under Islamic law it is forbidden to pay interest should get a receptive ear in a U.S. Court or should he get slammed for defrauding his lender?

    daleyrocks (9896ff)

  79. Pretty funny. While you and imdw are screeching about discriminating against a religion, the rest of us are talking about avoiding inserting religion into a set of laws.

    There’s already a mechanism for that, though.

    If, on the remote million-to-one possibility, that some Oklahoma state judge goes clinically bonkers, and rules that all Oklahoma women must wear burkas, there’s:

    (1) the appellate process and
    (2) the political process.

    But if two private individuals/companies want to contract with each other and THEY BOTH AGREE to have Sharia law govern the terms… or some Muslim-American wants to write a will and have that will governed by Sharia Law… why should the government of Oklahoma interfere?

    Kman (d25c82)

  80. Chill.

    Comment by imdw

    Coming from Mr Hysterical himself.

    Fact is, judges need this guidance. If your only reaction is that the guidance only says what everyone already knows can never ever happen, then maybe you need to chill, since the law is simply redundant.

    Dustin (b54cdc)

  81. @74 — Very well, I stand corrected. However, I do feel compelled to note the one word you were missing before. “LEGAL precepts.” Which is not the same thing as precepts, full stop. So you’re basically admitting that your whole argument has been based on a misrepresentation. Congratulations.

    @76 — Happily. Now granted, it IS only one case, and it WAS indeed reversed on appeal. Which is more than you can say for any evidence about your fictional alien race. Which still means your example was dumb. I mean, really — if you actually want to OPPOSE something, try opposing it on non-sarcastic grounds that make sense. See #32 above for an example of what you could have been, but weren’t.

    Demosthenes (b04fc5)

  82. And with that, I retire from today’s field of battle, to rest myself for the morrow.

    Demosthenes (b04fc5)

  83. Now granted, it IS only one case, and it WAS indeed reversed on appeal

    That case doesn’t work, Demos. The lower court (which, as you say, got overturned anyway) didn’t apply Sharia law.

    Yes, the defendant’s state of mind was informed by his Muslim culture, and that went to the defendant’s intent. But the court itself didn’t employ Sharia law.

    Thanks for playing.

    Kman (d25c82)

  84. “Which is not the same thing as precepts, full stop. So you’re basically admitting that your whole argument has been based on a misrepresentation. Congratulations.”

    Dude, you’re the one who demanded to see the word culture when it was right there all along.

    “imdw – Do you think if a muslim took out a mortgage loan and then refused to pay the interest and then sued his bank to prevent it from foreclosing under the grounds that under Islamic law it is forbidden to pay interest should get a receptive ear in a U.S. Court or should he get slammed for defrauding his lender?”

    I think that argument would clearly lose.

    How about if a muslim banker makes an Islamic loan to a muslim homeowner, and then they get in a dispute. Should the court ignore the deal they made and re-write it?

    imdw (19a675)

  85. If, on the remote million-to-one possibility, that some Oklahoma state judge goes clinically bonkers, and rules that all Oklahoma women must wear burkas, there’s:

    (1) the appellate process and
    (2) the political process

    And this is applying the political process to prevent that from happening in the first place.

    Some chump (4c6c0c)

  86. Some chump – it seems clear they just want to make things up as they go along. Kmart even admitted that it thinks we should not address potential problems until they have actually already become a problem.

    JD (c8c1d2)

  87. kman

    if you want to argue that it is a virtue to not anticipate problems before they arrive, well, sorry you are being silly.

    For instance, how many times have we ever had to remove a sitting president for high crimes and misdemeanors? none. never. So i guess we didn’t need an impeachment clause, right?

    Aaron Worthing (e7d72e)

  88. And this is applying the political process to prevent that from happening in the first place.

    Yes, the wily citizens of Oklahoma have prevented the activist Oklahomian judges — notorious Muslim lovers that they are — from imposing their Islamic laws on an unsuspecting public.

    Good show.

    Except, they haven’t done that, since such a law is clearly unconstitutional (under both the Okla and federal Constitution).

    Kmart even admitted that it thinks we should not address potential problems until they have actually already become a problem.

    I’m saying that one should address likely problems, not far-fetched fear-and-prejudiced-based ones.

    Kman (d25c82)

  89. Leftist cannot imagine anything not being based on fear or prejudice. It is because that is how they view everything.

    JD (c8c1d2)

  90. Leftist cannot imagine anything not being based on fear or prejudice.

    No, no. I hear you. You’re saying it’s based on overwhelming evidence that Sharia law is going to supplant a couple hundred years of American jurisprudence right in the midst of America’s heartland. It’s a real, not imagined, threat — and it WILL happen if we don’t do something.

    Like WMDs in Iraq.

    Kman (d25c82)

  91. You are arguing against a caricature you have constructed in your mind. I understand that makes it easier for your little mendoucheous pea brain, but it ain’t honest.

    JD (c8c1d2)

  92. BUNNIES !!!!!!!!!!!

    JD (c8c1d2)

  93. JD wins again Kman. He bunnied you.

    imdw (7b0243)

  94. You are arguing against a caricature you have constructed in your mind.

    Actually, I’m arguing against a caricature you have constructed in your mind — the notion of Sharia law subverting Oklahoma state law.

    Kman (d25c82)

  95. Kman

    > I’m saying that one should address likely problems, not far-fetched fear-and-prejudiced-based ones.

    Right, our preference for our legal system is based on prejudice. Wow, the moral relativism of liberalism is officially disappearing up its own arse.

    Aaron Worthing (e7d72e)

  96. Kman

    And its not simply a matter how likely it is to occur, but also how awful it would be if it did.

    The fact you don’t live in Pakistan suggest you are not crazy about the idea of living under sharia.

    Aaron Worthing (e7d72e)

  97. Kman and imdw are carefully not mentioning the most recent time (of which I am aware) that a formerly Christian country came under Sharia Law … take a look at the past 100 years of history in and for Lebanon …

    It was a Christian country, prosperous, respected as a centre of learning and culture – Beirut was considered to be the Paris of the Middle East … in the past 20 years, what is known of Beirut and Lebanon, under Islamic governance which includes Sharia Law ?

    So – kman #76 – what do sensible folk think can happen ? By learning from history, it is possible to preclude repeating mistakes …

    It’s a good thing you mentioned Iraq … the planet learned from history there – and, when Saddam Hussein started going the lebensraum route, the rest of the planet stepped in and *prevented* it … and then GWBush learned from post-WW I history, and prevented Iraq developing to where Saddam Hussein could try again …

    I realise that the concepts mentioned here are probably a bit complex for Kman and imdw and their ilk, but one feels the duty to try to convey understanding … (grin) …

    Alasdair (e7cb73)

  98. It’s rather unlikely that I steal the space shuttle and crash it into the holocaust museum.

    Alas, we make things illegal because we don’t want them to happen and not because they are going to happen, for sure, if we don’t outlaw them.

    They sure are upset about this.

    Dustin (b54cdc)

  99. Right, our preference for our legal system is based on prejudice.

    Hey, if the Okie legislature wanted to make a proclamation about how much they love our legal system, that’s fine… but to single out and trample on another’s religion and ideology kind of undercuts that point. It’s the kind of religious oppression that sent the pilgrims packing in the first place.

    The fact you don’t live in Pakistan suggest you are not crazy about the idea of living under sharia.

    Well, no, idiot. It has more to do with the fact that all my stuff is here. I don’t even know what “sharia law”, strictly speaking, even means. Nobody does, or at least, nobody can agree.

    Kman (d25c82)

  100. kman

    > but to single out and trample on another’s religion

    Sharia is not a religion. and in fact, they banned the consideration of all other nations and cultures’ legal precepts, but their own. the only “singling out” is that they named sharia as one of those systems excluded. they also did so with international law.

    > It’s the kind of religious oppression that sent the pilgrims packing in the first place.

    Actually ironically you are more right than you realize. The puritans wanted to impose their religious based laws on others and were not being allowed to in england. so they came over here and burned witches.

    > Well, no, idiot

    Hey, at least i am smart enough to read things before i comment. i bet you don’t even realize that as policy i actually agree that this law is a bad idea.

    > I don’t even know

    And yet you are ready to pretend there is nothing about it that is incompatible with our common law system.

    > Nobody does, or at least, nobody can agree.

    And if we don’t have 100% agreement on something, we can’t know anything about it! /bull

    Aaron Worthing (e7d72e)

  101. “It’s a good thing you mentioned Iraq … the planet learned from history there – and, when Saddam Hussein started going the lebensraum route, the rest of the planet stepped in and *prevented* it”

    You’re re-writing your history here: when he started going lebensraum in 1980 people were pretty happy to support him. It was only later that people stepped in to prevent him.

    imdw (53b665)

  102. Makes me think the solution is to move Kman’s “stuff” to Pakistan, since that’s his only problem.

    SPQR (26be8b)

  103. Sharia is not a religion

    The motivation for the Oklahoma amendment quite clearly was to ding the Islamic faith. They didn’t even hide that fact. So yes, a specific religion WAS singled out and trampled.

    Kman (d25c82)

  104. Makes me think the solution is to move Kman’s “stuff” to Pakistan, since that’s his only problem

    Why move to Pakistan when I get the Christian and English version of religious oppression right here in Oklahoma?

    Kman (d25c82)

  105. “Kman and imdw are carefully not mentioning the most recent time (of which I am aware) that a formerly Christian country came under Sharia Law … take a look at the past 100 years of history in and for Lebanon …”

    Much to the chagrin of religious fundamentalists, I think our constitution does a fair enough job of keeping us from living under religious oppression, so that we don’t need these kooky laws.

    imdw (bdd6dc)

  106. And they are just exactly the same kind of oppression too, Kman. Exactly.

    SPQR (26be8b)

  107. And they are just exactly the same kind of oppression too, Kman. Exactly.

    Yes, their state-sanctioned religious oppression is far worse than what we’re seeing with Oklahoma, if only because Oklahoma’s law will get struck down.

    Kman (d25c82)

  108. Comment by Kman — 11/12/2010 @ 1:37 pm

    Comment by imdw — 11/12/2010 @ 1:38 pm

    Well said. Because if the Christianists in this country had their way, I wouldn’t be able to go to school or drive a car, I could be raped and then stoned for adultery for being raped. And you know how those Christians are about showing a strand of hair in public — not to mention that if you’re an atheist or a homosexual they’d as soon cut off your head — hahaha — as look at you.

    Is that really the best you gentleman can do?

    Because if you’re serious, this woman isn’t buying it. All due respect, for all its flaws this is the freest country on Earth, and what’s more, you both bloody well know it.

    no one you know (325a59)

  109. All due respect, for all its flaws this is the freest country on Earth, and what’s more, you both bloody well know it.

    I DO know it. And it’s that way in spite of what they’re trying to do in Oklahoma, not because of.

    Kman (d25c82)

  110. “Should the court ignore the deal they made and re-write it?”

    imdw – The court should enforce the written contract. That’s what this is about. Enforcing our laws as they stand, not religious laws made up by bearded men in caves and mosques. Then again, you knew that.

    daleyrocks (9896ff)

  111. Kman

    > The motivation for the Oklahoma amendment quite clearly was to ding the Islamic faith

    Really? How do you know that? Even the court didn’t cite a single anti-islam statement. And of course even if one guy said it, it is wrong to impute that logic to the entire populace.

    Aaron Worthing (e7d72e)

  112. A lot of you defending the Oklahoma amendment are giving really good examples of things that, if they were happening here, really would be cause for concern. But they *aren’t* happening here. And there no reason to believe they ever will or would.

    They aren’t even happening in England, where there really is a problem. In England, people are being allowed to voluntarily submit their disputes to Sharia arbitrators. Both parties have to want to do it, not just one of them.

    My problem with what’s happening in England is twofold. One, I question whether woman can really be voluntary in submitting their disputes to a Sharia tribunal. Two, I don’t believe criminal matters should be resolved outside of the official legal system. “The People” have an interested in prosecuting even if the alleged victim just wants to go to a Sharia tribunal.

    But that’s not happening here. And nowhere, not even in England, is there a situation where banks can’t collect interest because the borrower has unilaterally decided to retroactively construe his loan agreement as Sharia-compliant.

    Sarah (c7f910)

  113. I’m looking forward to Oklahoma courts considering Sharia law:

    All sorts of fun things in it.

    The testimony of non-Muslims is given scant weight;
    Women get the shaft in inheritance and marriage; Pro Se litigation; and much much more.

    I say, go ahead and certify.

    Len (143e4c)

  114. sarah

    It doesn’t have to be a looming threat [or] even a bad system.

    the law equally bans them from incorporating Japanese law or the napoleonic code. Its a matter of picking one legal system over another.

    [edited after the fact. –Aaron]

    Aaron Worthing (e7d72e)

  115. people are being allowed to voluntarily submit their disputes to Sharia arbitrators. Both parties have to want to do it, not just one of them.

    in a world which allows binding arbitration, why should Sharia arbitrators be treated any differently than any other arbitrators?

    don’t get me wrong: i really dislike binding arbitration as a system. but if it’s going to be allowed, restricting the set of options usable for the arbitration in this way seems … to defeat one of the primary points of allowing arbitration in the first place.

    aphrael (e0cdc9)

  116. Like WMDs in Iraq.

    …aaaaannd with that expertly constructed and demolished strawman, kfart once again displays its true colors.

    Dmac (b0b661)

  117. “And nowhere, not even in England, is there a situation where banks can’t collect interest because the borrower has unilaterally decided to retroactively construe his loan agreement as Sharia-compliant.”

    Sarah – I did not claim that was happening, but why is it outlandish to imagine someone testing such a claim in courts he knows have become receptive to sharia law?

    daleyrocks (9896ff)

  118. “Sarah – I did not claim that was happening, but why is it outlandish to imagine someone testing such a claim in courts he knows have become receptive to sharia law?”

    People test all sorts of outlandish things in court. In TN some fools are arguing that Islam is not a religion.

    “All due respect, for all its flaws this is the freest country on Earth, and what’s more, you both bloody well know it.”

    And we didn’t need this law in OK to do it!

    “imdw – The court should enforce the written contract. That’s what this is about. Enforcing our laws as they stand, not religious laws made up by bearded men in caves and mosques.”

    Let’s say the written contract says that both parties agree to go to a muslim “sharia” arbitrator. Should a court enforce the rulings of this “sharia” abitrator?

    imdw (7c85b9)

  119. The way the Left seems to interpret law these days demands that the citizenry pick out what they do not want, and drive a stake through its’ heart; otherwise, the annoited one’s on the Left will try every work-around that they can invent to do what the People specifically have wished to deny them.
    Short answer: OK is OK!

    AD-RtR/OS! (413a4e)

  120. Aaron #114 – My concern is tinkering with a good system to address a non-problem. It’s the worry about unintended consequences.

    As we’ve all acknowledged (I think), there are some good, legitimate reasons for U.S. courts to refer to or even enforce foreign law.

    But to address a non-problem, OK messed with hundreds of years of solid jurisprudence without much concern for the unintended consequences.

    If we really had a problem with Sharia Law being enforced in the U.S., I’d be all over a constitutional amendment. But it would need to be much more carefully and narrowly drafted than this one was in order to prevent those unintended problems.

    As it is, it didn’t accomplish anything beneficial, because there was no problem to fix. But it *might* have some negative consequences. And there’s no question that it has the appearance of singling out a particular religion for disparate treatment.

    Is it worth it? It’s generally agreed that the U.S. has the best-integrated Muslim minority in all the world. I just don’t see the point of stoking flames of antogonism when there’s no real problem.

    aphrael #115 – I’m not in general opposed to Sharia arbitrators. I am opposed to having a parallel criminal system. I don’t believe that criminal conduct should be submitted to arbitration tribunals of any sort. And for crimes, divorce, probate and domestic issues, I am concerned that women are not really acting “voluntarily” when they waive their rights under the official system and submit to one where they are treated as second-class citizens and male chattel.

    daleyrocks #117 – I’m not making claims about whether “it’s outlandish to imagine” someone making this argument. I am making the claim that such an argument has never been successfully made here, it never will be, and it isn’t even happening in a place where they really are having issues with a parallel legal system. I am also making the claim that you ought not amend your constitution in a way that may have negative unintended effects when the thing you’re worried about really isn’t a possibility.

    Sarah (c7f910)

  121. Comment by imdw — 11/12/2010 @ 3:12 pm

    Comment by Kman — 11/12/2010 @ 2:00 pm

    Perhaps I didn’t make myself clear. You both said in effect [paraphrasing here] “it’s pretty much just as oppressive here; we’re the English version of Sharia” or whatever.

    Issues of the OK law aside (and people here seem to be doing a great job discussing that; am following it with interest) you’ll excuse me for pointing out that both of you fell prey to the all-too-typical farleftliberal tendency to lapse into lazy and fact-free denunciations of America as oppressive/bigoted/racist, and Heaven Gaia forfend that we should even imply that American culture or society is better than any other.

    If you’d stuck to the facts of this discussion, again all due respect, I wouldn’t have called you out.

    But am getting pretty thoroughly sick of having this country as a whole slandered because you’re not happy with some of the messier workings out, such as this OK proposal, of our dual commitment to liberty, AND justice, for all.

    no one you know (325a59)

  122. So you might ask, isn’t that religious discrimination? Well, here’s the reality. Our law is based on Christian legal traditions.

    Anglo-Saxon common law is based on Christian legal traditions? What law school did you go to?

    nk (db4a41)

  123. I don’t believe that criminal conduct should be submitted to arbitration tribunals of any sort.

    I can get behind that, and I don’t think it actually happens all that much. The closest I can see it coming are ‘criminal’ violations which are both criminal and tortious, where the tort goes to arbitration.

    I am concerned that women are not really acting “voluntarily” when they waive their rights under the official system and submit to one where they are treated as second-class citizens and male chattel.

    I’m equally concerned that many people signing contracts of adhesion (either as employees who just take the contract offered to them by their potential employer, or rental contracts or the like) really aren’t acting voluntarily. This is particularly true when you consider that state law rules which require that binding arbitration be called out in large print or otherwise made obvious (instead of being buried in the fine print) have been held to violate federal law and therefore invalidated.

    But this goes to my general concerns with arbitration. :)

    aphrael (e0cdc9)

  124. nk #122 – as a Scot, I am offended by your casual throw-away implication that the founding of this fine country was based upon anglo-sassenach drivel !

    The Declaration of Arbroath was significant in the Founding Documents’ preparation and deliberations thereupon, even if the anglo-sassenach stuff got drawn in to mess it up some, too !

    For shame, ye haverer !

    (grin)

    Alasdair (e7cb73)

  125. imdw #101 – in 1980, Saddam Hussein was still at the sibling rivalry stage … it wasn’t until about a decade or so later that the lebensraum efforts kicked in in a serious way …

    Or did the rest of the planet miss him taking over non-Iraqi parts of the planet back then ?

    If you are going to challenge historical facts, please try to have some basis for your challenge …

    Alasdair (e7cb73)

  126. Alasdair,

    Considering that

    1) The most famous Celt of all was Alexander the Great; and
    2) The Scotti were the just black Irish;

    I think I win on irrelevancies. 😉

    Seriously, law is a tool society uses to help itself. A hammer hitting a nail, an adze shaping a wood. It is not based on principle. It is based on the society’s experience.

    nk (db4a41)

  127. “I am making the claim that such an argument has never been successfully made here”

    Sarah – I support your claim, especially since the government has worked hard with lenders to design sharia compliant lending programs in this country, perhaps in part just to avoid such problems.

    daleyrocks (940075)

  128. “Let’s say the written contract says that both parties agree to go to a muslim “sharia” arbitrator. Should a court enforce the rulings of this “sharia” abitrator?”

    imdw – If the parties to the binding arbitration have freely agreed to its rules, as long as the outcome is not illegal or unenforceable under U.S. law should one party not perform its obligations, why should a court care about the identity of arbitrator or the rules under which he operated?

    daleyrocks (940075)

  129. “the courts shall not consider international law or Sharia Law”.

    seems like that would apply to contract interpretation, too.

    aphrael (e0cdc9)

  130. I can get behind that, and I don’t think it actually happens all that much. The closest I can see it coming are ‘criminal’ violations which are both criminal and tortious, where the tort goes to arbitration.

    There’s the possibility of a victim refusing to co-operate with the prosecutors; but I think that problem would come up whether or not alternative tribunals existed.

    But the extreme results some people seem to think would result from shariah law being accepted here could not happen in real life.

    Orthodox Jews have an alternative court system in place, and some of it is decidedly unfair to women. And as far as I can tell, it would be treated like Shariah under this amendment.

    But guess what? If either party is dissatisfied, there’s no secular law that prevents them from going to secular court. And in any case involving divorce or child custody, the case comes before a secular court after the Jewish divorce is granted, and a secular judge can intervene at that point if he doesn’t like what he sees.

    I agree that the potential for women being forced to give up their rights in family law disputes and domestic violence is real. But that problem will also arise when those cases enter the secular court system. But the appropriate way to deal with it is to ensure that when those cases come into the secular legal system, the judge in the case should be obligated to take extra steps to make sure the woman’s consent is truly voluntary, and stop things in their tracks if the consent is not voluntary.

    kishnevi (3721d8)

  131. aphrael #129 – ““the courts shall not consider international law or Sharia Law”.”

    As long as the parties to a given contract all agree to use whatever mutually-agreeable legal basis, and as long as there is no dispute, they remain unaffected by the Oklahoma amendment …

    Nothing in that amendment prevents folk from forming contractual relationships based upon Sharia Law … of course, if either side disputes, then the amendment simply says that the Saria-Law-based parts are not enforceable …

    So – law-abiding Muslims will not be affected in any negative way, right ???

    So – no harm, no foul …

    Alasdair (4dff39)

  132. alasdair – right, but if there *is* a dispute, then the courts aren’t allowed to resolve the dispute by reference to the terms the contracting parties requested be used.

    this can hurt the party who didn’t break the contract, too.

    aphrael (e0cdc9)

  133. aphrael #132 – doesn’t this affects literally *everyone* equally ?

    And, as such, is therefore constitutional ?

    Alasdair (a746e3)

  134. Alasdair – sure. i’m not arguing that it’s unconstitutional. i’m arguing that it’s bad policy. :)

    aphrael (e0cdc9)

  135. In AZ, where a Muslim nutcase murdered his dtr by running over her because she was becoming too Americanized, the defense attorney got the judge to take the DP off the table in advance of the trial so it wouldn’t seem as if we were picking on the guy due to his religion.
    Maybe we don’t need formal sharia.

    Richard Aubrery (59fa91)

  136. “imdw – If the parties to the binding arbitration have freely agreed to its rules, as long as the outcome is not illegal or unenforceable under U.S. law should one party not perform its obligations, why should a court care about the identity of arbitrator or the rules under which he operated?”

    Exactly. But you see how this is in contrast with you starting with “The UK has sharia courts” ?

    imdw (0275b8)

  137. “imdw – If the parties to the binding arbitration have freely agreed to its rules, as long as the outcome is not illegal or unenforceable under U.S. law should one party not perform its obligations, why should a court care about the identity of arbitrator or the rules under which he operated?”

    Exactly. But yet you started with “The UK has sharia courts” ?

    imdw (8a8ced)

  138. What is the matter with singling out and trampling over a religion? EU types and Thomas Friedman’s PRC friends do that every day with scientology and falun gong. Islam is more phony, appalling, and violent than either of those faiths.

    tehag (7b562b)

  139. “What is the matter with singling out and trampling over a religion?”

    Sums it up no?

    imdw (ce700c)

  140. imdw

    sharia is a religion?

    I thought it was a legal system.

    Do you have a constitutional right to invoke the Napoleonic code?

    Aaron Worthing (e7d72e)


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