Oklahoma Bans Sharia Law

[HoosierGuy]

Good news, if you are ever in an Oklahoma court, you don't have to worry about Sharia law being applied!

Law professor: Ban on Sharia law 'a mess' – This Just In - CNN.com Blogs

Oklahoma voters on Tuesday approved a measure that bans the application of Islamic law and orders judges in the state to rely only on federal law when deciding cases. State Rep.

Sharia law has never been applied in the state. Go figure!

There has never been a previous case in the state in which Sharia law was applied, said Rick Tepker, the first member of the University of Oklahoma School of Law faculty to try a case before the U.S. Supreme Court.

Since we have separation of church and state, how in the world can this bill be constitutional in the first place? And if they are going to pass a bill banning

Sharia law, why not ban all religious law? Then again, all religious law is baned

in the first place! So what's the point? Maybe to scare people?

[Just_A_Guy]

About three years ago I wrote a paper regarding the use of arbitration in family law contexts (divorce, custody, etc); and came across some situations where court commissioners/magistrates (in New York, I think) had been willing to apply aspects of rabbinic law in cases involving Jewish families. In jurisdictions that do that, there's really no reason why they couldn't also apply Sharia law to Muslim families as well (or even have an Imam or whatever Islamic council handles this type of thing under Sharia law, get licensed as an arbitrator and pretty much handle the whole divorce that way).

So the new law may or may not be wise; but the issue of Sharia and rabbinic law creeping into our US legal system--and the extent to which we want to allow it to do so--is real.

Edit: I dug up my primary source on this: it's an article called "Toward a Multicultural Family Law" by Ann Laquer Estin, 38 Family Law Quarterly 501 (2004) (abstract here).

Edited November 4, 2010 by Just_A_Guy

[rameumptom]

Banning Sharia Law is not the same as banning Islam. Sharia Law is not Islam religion, but rather their form of rules and laws regarding religious matters. We do not want to allow Muslims in America to be able to use Sharia Law to abrogate Constitutional rights: such as equality for women, due process, or unusual punishment (hanging a woman for adultery, for example).

While the USA may not yet be using Sharia Law, England is having to already deal with it, as well as many other European nations. They are often finding that the imams are handling issues outside of the established legal program. If such becomes common, suddenly you will find that no one will go through the regular courts, if the shadow government of Sharia Law gives you quicker access to what you want.

[Tarnished]

The idea of Sharia Law coming to the US rather frightens me. The whole idea that it would be legal in the US to burn or hang or even stone a woman for something. Or that honor killings would be legal as well. No matter the history of the customs it comes from the whole idea behind honor killings seems backward in my mind. There are some things in the world that make me wish that the Second Coming would come sooner.

[marshac]

Or that honor killings would be legal as well.

Especially when the one killed for family honor is actually the victim of sexual assault (Naile Erdas). I just don't get it.

[Dravin]

While the USA may not yet be using Sharia Law, England is having to already deal with it, as well as many other European nations. They are often finding that the imams are handling issues outside of the established legal program. If such becomes common, suddenly you will find that no one will go through the regular courts, if the shadow government of Sharia Law gives you quicker access to what you want.

I take it the issue is that this Sharia arbitration results in law violating outcomes?

Edited November 6, 2010 by Dravin

[rameumptom]

Dravin,

Yes it does. In many Arab nations, the Sharia Police, which are not an official police force, go around practicing and enforcing Sharia Law, outside the scope of the actual law.

Case in point, about 10 years ago a girls' school was on fire in Saudi Arabia. The girls attempted to escape the flames, but were not dressed appropriately according to Sharia Law. So, the Sharia Police forced them back inside to dress properly. Many of the girls ended up dying, who had once escaped the flames.

We find incidents of fathers wanting to execute their children for converting to Christianity or committing fornication, even in Western nations. See examples here in America:

The Real Impact of Sharia Law in America | The Foundry: Conservative Policy News.

Fleeing Sharia Law in America? - HUMAN EVENTS

[jennvan]

My understanding about the Oklahoma law is that it was in response to the examples cited above but also a more recent trial where a man cited Sharia law for his ability to rape his wife. It was eventually overturned in a higher court but it did win in the lower court. I think Oklahoma just wanted to be preventative in their law making.

[Elphaba]

Edit: I dug up my primary source on this: it's an article called "Toward a Multicultural Family Law" by Ann Laquer Estin, 38 Family Law Quarterly 501 (2004) (abstract here).

All of those abstracts were really interesting. I was struck by the fact that the majority of authors were women. I have no idea what that means, if anything, but I thought it was interesting.

I'd like to read the paper on the polygamy issue. I wish the public had better access to papers without having to pay a fee. I get why they charge the fee--I'm just always broke and that would be a luxury for me. I suppose if I were really motivated, I COULD go to the library.

I have a question--who is international family law applicable to, and how does it work within the framework of American family law? Is there an easy answer to that?

Thanks for the links.

Elph

[marshac]

I have a question--who is international family law applicable to, and how does it work within the framework of American family law? Is there an easy answer to that?

The supremacy clause of the US Constitution says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So any treaty that the US the agrees to would become the supreme law of the land just as the Constitution itself is- I suspect this is the reason why Oklahoma did what they did.... although if their law is ever invoked, it'll be interesting to watch the legal process and the final outcome.

[Just_A_Guy]

Elphaba, I didn't read the whole issue--just the one article, which I pulled off Westlaw back when I had a free student subscription--but in that context, it applied primarily to multi-national couples or couples who marry in one jurisdiction and divorce in another. For example--an American couple that marries here, but divorces in Pakistan under the auspices of a religious council that makes decrees as to child custody and/or property division, and then they come back to the US--will the US recognize the divorce, or do they still consider the couple married?

It's a complicated field of law; but I think the hinge question US courts consider is whether the foreign court recognizes some basic elements of due process--notice, opportunity to argue one's case, that kind of thing.

I'll probably be down at the BYU law library sometime this week, Elphaba--if I get a chance, I'll see if I can't pull that polygamy article and send you a scan (for scholarly fair-use purposes, of course.)

[Elphaba]

The supremacy clause of the US Constitution says:

So any treaty that the US the agrees to would become the supreme law of the land just as the Constitution itself is- I suspect this is the reason why Oklahoma did what they did.... although if their law is ever invoked, it'll be interesting to watch the legal process and the final outcome.

But if we already have a treaty with a nation that includes the ability to apply Sharia law, wouldn't the Supremacy Clause then make Oklahoma's law unenforceable?

Later: I guess that's what you meant by saying the legal process would be interesting to watch. Sorry--I really DID pay attention to your post. :)

Thanks for the explanation.

Elph

[Elphaba]

Elphaba, I didn't read the whole issue--just the one article, which I pulled off Westlaw back when I had a free student subscription--but in that context, it applied primarily to multi-national couples or couples who marry in one jurisdiction and divorce in another. For example--an American couple that marries here, but divorces in Pakistan under the auspices of a religious council that makes decrees as to child custody and/or property division, and then they come back to the US--will the US recognize the divorce, or do they still consider the couple married?

It's a complicated field of law; but I think the hinge question US courts consider is whether the foreign court recognizes some basic elements of due process--notice, opportunity to argue one's case, that kind of thing.

Thanks for that explanation, JAG. I'm sitting here thinking: "Why didn't I think of that?!!" My brain ceased functioning a few months ago, and obviously hasn't started again.

I'll probably be down at the BYU law library sometime this week, Elphaba--if I get a chance, I'll see if I can't pull that polygamy article and send you a scan (for scholarly fair-use purposes, of course.)

Oh, yes, my intended use is very scholarly.

This is very kind of you and I'll accept your offer ONLY if it's quick and easy for you to get it. If it's not, please don't waste your time on it--I'll understand completely.

Elph

[rameumptom]

The problem with accepting Sharia Law in context with a foreign treaty is that in most cases it does not allow for due process, nor the ability of the woman to have certain rights. For example, the woman in Iran who is scheduled for stoning/hanging because of adultery (where is the man that she committed the crime?). There is no due process, and the delay is only because of international focus.

We do not want women to lose their children to cruel and abusive men, simply because the woman has no rights in other nations' courts.

[Elphaba]

The problem with accepting Sharia Law in context with a foreign treaty is that in most cases it does not allow for due process, nor the ability of the woman to have certain rights. For example, the woman in Iran who is scheduled for stoning/hanging because of adultery (where is the man that she committed the crime?). There is no due process, and the delay is only because of international focus.

We do not want women to lose their children to cruel and abusive men, simply because the woman has no rights in other nations' courts.

Yes, all of that is true, and while I'm not opposed to Oklahoma passing the law, per se, all of what you wrote seems to me to demonstrate it is unecessary.

All of the issues I have with Sharia, and they are many, are already illegal in this country, so why the need to specifically make Sharia illegal? Unless there is a real-life situation that's made it necessary, it smacks more of this country's anti-Muslim bigotry than of real necessity.

I tend to be opposed to hate crimes for the same reasons, though there are times when I do think they apply--I am pretty conflicted about them. Perhaps there is a situation I'm not aware of that makes Oklahoma's actions reasonable. If so, I'd like to know of it.

Elphaba

[jayanna]

So the new law may or may not be wise; but the issue of Sharia and rabbinic law creeping into our US legal system--and the extent to which we want to allow it to do so--is real.

(abstract here).

I voted on this one.

A local judge was up for re-election and had made some statements in town meetings that supported Sharia.

Also there was a case in Texas that made some of the locals pretty worried, though I don't know where I would find it.

However you might want to read Federal judge bars Oklahoma's certification of Sharia law amendment | NewsOK.com

[Tarnished]

Yes, all of that is true, and while I'm not opposed to Oklahoma passing the law, per se, all of what you wrote seems to me to demonstrate it is unecessary.

All of the issues I have with Sharia, and they are many, are already illegal in this country, so why the need to specifically make Sharia illegal? Unless there is a real-life situation that's made it necessary, it smacks more of this country's anti-Muslim bigotry than of real necessity.

I tend to be opposed to hate crimes for the same reasons, though there are times when I do think they apply--I am pretty conflicted about them. Perhaps there is a situation I'm not aware of that makes Oklahoma's actions reasonable. If so, I'd like to know of it.

Elphaba

From what I have heard (currently I have no sources for this), there are European countries whose laws are opposite that of Sharia law, however because of large influxes of Muslims the majority vote has voted in Sharia law. In those countries Muslims will go to Sharia law enforcers rather than go to regular law enforcement. They will take judgements made by Sharia law above judgements made by government law. There have been countries where the Muslims have told the people there that once they outnumber the native citizens they will make Sharia law the law of the land. The Quran even prophesies that at some point Sharia law will be instituted in every land, and there are many Muslims that look forward to that day and strive for it.

Considering what the law allows to happen I would be for banning that law pretty much anywhere, and it has nothing to do with any anti-Muslim sentiment on my part. I have a few Muslim friends, but that does not mean I would want Sharia law instituted in my country. Considering what is happening in Europe, I have no problem with America banning Sharia law when they can.

[Tarnished]

Some of these are more opinions than sources, but some of them are news stories. Either way, it is evident that Sharia law is making its way through Europe and Canada and into the US.

SHARIA EUROPE - Sharia Law In Europe: UK, France, Germany ...

Sharia's Inroads in Europe - Italian Court: 'Beaten Up for "Her Own Good"' :: Hudson New York

Dr. Laurie Roth Ph.D. -- Sharia Law...in our future?

Blair and the Problem of Muslim Integration | John Rentoul | Independent Eagle Eye Blogs

'Britain's Islamic republic': full transcript of Channel 4 Dispatches programme on Lutfur Rahman, the IFE and Tower Hamlets – Telegraph Blogs

[rameumptom]

Yes, all of that is true, and while I'm not opposed to Oklahoma passing the law, per se, all of what you wrote seems to me to demonstrate it is unecessary.

All of the issues I have with Sharia, and they are many, are already illegal in this country, so why the need to specifically make Sharia illegal? Unless there is a real-life situation that's made it necessary, it smacks more of this country's anti-Muslim bigotry than of real necessity.

I tend to be opposed to hate crimes for the same reasons, though there are times when I do think they apply--I am pretty conflicted about them. Perhaps there is a situation I'm not aware of that makes Oklahoma's actions reasonable. If so, I'd like to know of it.

Elphaba

Because we base our highest laws on the Constitution and treaties passed by Congress. If ever Congress were to agree to a treaty that allowed Sharia Law to be a substitute or tangential law in the USA, we would severely affect our rights. This, in fact, is a problem they are having in England right now.

[Just_A_Guy]

However you might want to read Federal judge bars Oklahoma's certification of Sharia law amendment | NewsOK.com

I've been following that, and it screams constitutional issues. It's one thing for the federal government to keep a state from enforcing a law that violates the US constitution. It's quite another to say that the people of the state cannot enact the law in the first place--which, procedurally, is what this judge has done by ordering the state not to certify the election results.

Courts nullifying (not overruling, but nullifying) elections, is not a step in the right direction. IMHO.

[jennvan]

The Quran even prophesies that at some point Sharia law will be instituted in every land, and there are many Muslims that look forward to that day and strive for it.

My understanding is that its not a prophecy but more a requirement (or commandment) of Islam to convert everyone over to Islam and to make Sharia law the law of the land, so that even "unbelievers" would be subject to it. There are some who teach that it is one of the foundational commitments Muslims make in their faith. I was taught this by an Imam when I took a 16 week class on the religion of Islam.

I took a look at wikipedia and found this page Five Pillars of Islam - Wikipedia, the free encyclopedia which explains the 5 pillars of Islam pretty basically. It is the same as what I was taught. And remember there are other writings that most of Islam also embraces similar to what we as LDS do. They have the hadith (which is Muhammad's doings and sayings in his life, which is almost as sacred as the Koran) and various writings of their Imam and other clerics (which would be similar to local leadership in our church, Area 70's, stake presidents and bishops). In those other writings, Muslims are commanded in more specific ways to do things that would bring them into power where ever they live.

We can see this beginning to happen in Europe as others have stated in this thread. It is causing major problems in many areas. I don't believe for a second that people of Islam wouldn't hesitate to find a way to make this happen here in the US, despite whatever the Constitution says. The Constitution means nothing to some Muslims. There are some who have come to the US because they want to be able to live their religion the way they see it and are not able to do so in other Muslim countries and therefore Love the Constitution. Others, not so much. Those are the ones we need to be aware of and worried about. IMO.

[Elphaba]

I really appreciate the links all of you have offered to explain the threat Sharia poses to America--I learned a few things I wasn't previously aware of.

Believe me, I despise Sharia. But America is different than Europe or Canada in that we have a well-adjudicated separation of church and state. All of the egregious examples of Sharia imposing its laws on Americans in an extra-legal way are already illegal--so why the need for an amendment that is probably unecessary, redundant, and very likely unconsitutional?

Rather than go on about it, I'll just post this article that, I admit, I only just found in my search for more information, that was very persuasive to me. Then I'll bow out of the conversation because I'm not as well-versed in the issue as I should be. So take this as my position with the understanding that I do understand the concern.

The Oklahoma Referendum Prohibiting Staet Courts from Applying International or Sharia Law

Elphaba

[cathyyg]

There is a large Muslim population where I live - about 20 miles from Dearborn, MI. The vast majority of these people do not want Sharia law. They are proud and patriotic Americans. They only wish to practice their religion within the confines of US law. The people who want Sharia law want to propagate the cultural norms from their old country, and that country is typically Pakistan (but not always). This is also true of the wearing of the burqa, or niqab, both of which veil the face. The Quran is quite specific; Mohammed said the face and hands may be exposed. To cover less is immoral and may cause men to sin by feeling lust; to cover more is unnecessary in Islam but is the cultural norm in some places.

[rameumptom]

I really appreciate the links all of you have offered to explain the threat Sharia poses to America--I learned a few things I wasn't previously aware of.

Believe me, I despise Sharia. But America is different than Europe or Canada in that we have a well-adjudicated separation of church and state. All of the egregious examples of Sharia imposing its laws on Americans in an extra-legal way are already illegal--so why the need for an amendment that is probably unecessary, redundant, and very likely unconsitutional?

Elphaba

But even we are being affected. Supreme Court Justice Anthony Kennedy and others have actually begun referencing international law and foreign expectations as things he is taking into account in cases. This goes against our Constitution as the supreme law of the land. Many judges are beginning to consider extra-Constitutional law as valid to consider in making decisions. This is a very dangerous premise that could destroy our Constitution if it is not protected by such stances made in OK.

[Just_A_Guy]

Elphaba, I haven't forgotten that article I was supposed to get for you; but this recent post at Volokh.com may amuse you in the meantime.