Wednesday, January 11, 2012


Are we living in Bizarro world?

Oklahoma passed a law which blocked courts from ruling based on Sharia law. The fact that this was even considered necessary, in Oklahoma of all places is a bit puzzling. I suspect it was more preventative than in response to some great rise in Oklahoman judges using Sharia rulings.

Well a Muslim took this to court, and the 10th circuit federal court ruled recently that the law violates the US Constitution. How, you ask? Judge Thomas Michael Weaver (a Clinton appointee) said that the law violates the 1st amendment "no-discrimination-against-religion principle."

Which is just incomprehensible to me. The US Constitution says that you can’t establish a religion, and using a religious court to decide rulings would seem to be doing exactly that. Instead, we have a court ruling that not using religious rulings is violating the first amendment?? This law seems unnecessary to begin with, the 1st amendment already bans courts from using religious rules for making judgments.

The argument for this is based on concepts of judges being dragged into disputes that arise from religion. Say a man wants to divorce a woman, and Sharia law has granted him certain rights in the marriage contract, but she wants to get out of those rights. They argue that this law would prohibit the judge from making a decision based on that Sharia-based contract, but I can't see how that's remotely valid.

Common sense and basic contract law should cover everything, it doesn't matter what Sharia law says, all that matters is what the contract was when agreed upon and how contracts are usually adjudicated. This law was, as I understand it, meant to prevent by code, from there being any official two-law system which some countries have now, where you can go with the usual law or you can go with Sharia courts, depending on your faith.


Eric said...

What's really distressing about this issue is that it wasn't just a legislative maneuver by State Representatives trying to score points with their constituents... it was an amendment to the Oklahoma Constitition, decided by a ballot question during a state election, with over 70% of the people in the state voting for the measure.

I thought it was a silly law and voted against it, but I still very much disagree with a federal court intervening in what is clearly a state issue.

Likewise, last year a federal court overturned a popular law here pertaining to abortions that required a doctor to describe the body parts and development stage of the fetus to the mother during a sonogram (sonograms are already mandatory prior to an aboriton), and offer the mother an opportunity to see the images on screen. I have no idea why a federal court would be concerned with such a law (which was authored by my district rep, and which I supported).

I disagree with Newt Gingrich that these judges should be hauled in front of a Congressional Board and forced to explain themselves to Congress over stunts like this, but I do think we should better utilize the existing methods of impeachment to do something about federal judges who repeatedly and clearly exceed and abuse their authority.

Philip said...

Well, there are some religious 'courts' or legal bodies, such as those of the Jewish and Roman Catholic faiths. However, they are not supposed to deal in criminal matters (tho I have heard of exceptions, much to their detriment when found out). Most of their 'cases' pertain to certain disputes, marriage issues, etc. The legal issues are limited to members of the same religion, and in many cases, only those of the same group, like Hasidic Jews. Most importantly they are not to r supercede civil law. Yes, there have been 'cases' where that has happened, again with detrimental effects when discovered.

More importantly neither Jewish or Catholic legal bodies prohibits members of its faiths to go to civil courts for redress of what might be considered a religious issue. A Catholic, for example, can get a divorce in civil court. They can't remarry within the Church, but there is no law that says they must only abide by a Church ruling. Same with a Jew in a civil dispute with a fellow member of their synagogue.

The issue with sharia law is members of the Islamic faith would be limited to seeking redress only through a sharia court on any matter that Islam determines is in its purview. A woman seeking a divorce could go to a civil court; the ruling would either be ignored by a sharia court or worse, a penalty would be placed on the woman. Similarly, a Sunni shop owner could not go to civil court to sue a fellow Sunni over a business issue. Similarly, sharia courts would also claim jurisdiction over child abuse cases, rape, assault, theft, and so on.

That's where the issue is.