Midtowner
2/18/2013, 12:57 PM
OKLAHOMA CITY – Oklahoma lawmakers are considering banning judges in the state from basing any rulings on foreign laws, including Islamic Sharia law.
A Senate panel on Tuesday overwhelmingly approved the bill, which has broad support in the Republican-controlled Legislature. The bill would specifically make void and unenforceable any court, arbitration or administrative agency decision that doesn't grant the parties affected by the ruling "the same fundamental liberties, rights and privileges granted under the U.S. and Oklahoma constitutions."
Read more: http://www.foxnews.com/us/2013/02/12/oklahoma-senate-panel-approves-bill-prohibiting-judges-from-basing-decisions-on/#ixzz2LH1L4bUp
The federal court has already thrown out this same law once when it was a Constitutional Amendment adopted by the people. Does our legislature just not care about the cost to defend obviously unconstitutional laws anymore? Are they not aware that when CAIR and the ACLU sue, the law says that we the taxpayers have to pay their attorney fees when they win? Is Shortey secretly trying to raise money for CAIR and the ACLU?
I listened to Shortey try to explain this law last night on KTOK's Gwen Faulkner Lippert show. He says we need to protect our courts from turning into Sharia courts. He's basing this almost entirely on a case in which a New Jersey judge found someone not guilty because his religion said it was okay to beat up a woman.
This article sort of sums things up.
http://blog.heritage.org/2010/09/02/the-real-impact-of-sharia-law-in-america/
The trouble with the explanation is that it trips over the very thing which renders Sharia a mere sideline player in this fight legally speaking. What was at issue in this case and in others is a legal theory known as the cultural defense--a rarely tried and as far as I know never successful at the appellate level argument that a person's cultural belief in the rightness of something which is illegal here can negate the mens rea [bad intent] element of a crime and either reduce the penalty or remove it altogether.
Crimes are made up of two components--a mens rea [bad intent] and an actus reus [the actual act]. For example, homicide requires the intentional killing of another human being [actus reus] with malice aforethought [mens rea]. If I remove the malice aforethought, it's not murder, it's manslaughter, and that's where the cultural defense attempts to come in--to negate the bad intent and say that in the defendant's mind, the bad thing he did was actually virtuous rather than vicious.
So in that respect, even if we had a law saying no consideration could be given to foreign law, the cultural argument can still be made. It's not foreign law which is being argued, but rather culture.
And of course, that's all ignoring the fact that no judge could ever consider any religious law as determinative in a court of law because of the First Amendment Establishment Clause.
The problem Shortey's law really awakens is that we won't be able to, for example, have our multinational corporations contract with international companies and intentionally select, say, Swiss law to be enforceable by an Oklahoma Court. It really ties their hands.
Having actually had a few cases where Sharia's consequences probably needed to be considered, this case would have tied my hands when, for example, we had a woman in an arranged marriage, secure a big dowry contract, come over here and immediately left her husband. We won an annulment, and if Shortey's law was in place, we couldn't have the Court order her not to enforce the dowry contract in Iran--something which would have required the defrauded husband to pay something like 1,000 gold coins (it was around half a million bucks) on demand or face jail until he did.
---------
So do I think Sharia is harmless and there's nothing to be concerned about? Right now? Probably not. Later? I think there's a real threat. I was having lunch the other day with a magistrate from the UK. He recounted a recent UK case which featured a Sharia Court being set up in an English town. The Sharia Court found a woman and man guilty of fornicating and had them both stoned. When the authorities intervened, they charged various people with crimes, but the insular Muslim community refused to cooperate and the authorities were unable to obtain a conviction.
Currently, under the U.S. law, a Sharia Court could probably exist if both parties agreed to allow it to perform binding arbitration. The resulting orders could even be enforceable in our own courts unless they contained criminal penalties. THAT is the real problem I see. Of course, how do we attack the cancer which is Sharia without simultaneously assaulting Ecclesiastical courts and those sorts of things?
I suppose one way to go about it would be to make it a crime for any non state sanctioned court to issue criminal-like penalties and make the sentence very severe for anyone conspiring to do so? I don't know.
What I do know is that while Shortey probably means well, he's just not a very educated guy and he's striking out after the wrong thing.
A Senate panel on Tuesday overwhelmingly approved the bill, which has broad support in the Republican-controlled Legislature. The bill would specifically make void and unenforceable any court, arbitration or administrative agency decision that doesn't grant the parties affected by the ruling "the same fundamental liberties, rights and privileges granted under the U.S. and Oklahoma constitutions."
Read more: http://www.foxnews.com/us/2013/02/12/oklahoma-senate-panel-approves-bill-prohibiting-judges-from-basing-decisions-on/#ixzz2LH1L4bUp
The federal court has already thrown out this same law once when it was a Constitutional Amendment adopted by the people. Does our legislature just not care about the cost to defend obviously unconstitutional laws anymore? Are they not aware that when CAIR and the ACLU sue, the law says that we the taxpayers have to pay their attorney fees when they win? Is Shortey secretly trying to raise money for CAIR and the ACLU?
I listened to Shortey try to explain this law last night on KTOK's Gwen Faulkner Lippert show. He says we need to protect our courts from turning into Sharia courts. He's basing this almost entirely on a case in which a New Jersey judge found someone not guilty because his religion said it was okay to beat up a woman.
This article sort of sums things up.
http://blog.heritage.org/2010/09/02/the-real-impact-of-sharia-law-in-america/
The trouble with the explanation is that it trips over the very thing which renders Sharia a mere sideline player in this fight legally speaking. What was at issue in this case and in others is a legal theory known as the cultural defense--a rarely tried and as far as I know never successful at the appellate level argument that a person's cultural belief in the rightness of something which is illegal here can negate the mens rea [bad intent] element of a crime and either reduce the penalty or remove it altogether.
Crimes are made up of two components--a mens rea [bad intent] and an actus reus [the actual act]. For example, homicide requires the intentional killing of another human being [actus reus] with malice aforethought [mens rea]. If I remove the malice aforethought, it's not murder, it's manslaughter, and that's where the cultural defense attempts to come in--to negate the bad intent and say that in the defendant's mind, the bad thing he did was actually virtuous rather than vicious.
So in that respect, even if we had a law saying no consideration could be given to foreign law, the cultural argument can still be made. It's not foreign law which is being argued, but rather culture.
And of course, that's all ignoring the fact that no judge could ever consider any religious law as determinative in a court of law because of the First Amendment Establishment Clause.
The problem Shortey's law really awakens is that we won't be able to, for example, have our multinational corporations contract with international companies and intentionally select, say, Swiss law to be enforceable by an Oklahoma Court. It really ties their hands.
Having actually had a few cases where Sharia's consequences probably needed to be considered, this case would have tied my hands when, for example, we had a woman in an arranged marriage, secure a big dowry contract, come over here and immediately left her husband. We won an annulment, and if Shortey's law was in place, we couldn't have the Court order her not to enforce the dowry contract in Iran--something which would have required the defrauded husband to pay something like 1,000 gold coins (it was around half a million bucks) on demand or face jail until he did.
---------
So do I think Sharia is harmless and there's nothing to be concerned about? Right now? Probably not. Later? I think there's a real threat. I was having lunch the other day with a magistrate from the UK. He recounted a recent UK case which featured a Sharia Court being set up in an English town. The Sharia Court found a woman and man guilty of fornicating and had them both stoned. When the authorities intervened, they charged various people with crimes, but the insular Muslim community refused to cooperate and the authorities were unable to obtain a conviction.
Currently, under the U.S. law, a Sharia Court could probably exist if both parties agreed to allow it to perform binding arbitration. The resulting orders could even be enforceable in our own courts unless they contained criminal penalties. THAT is the real problem I see. Of course, how do we attack the cancer which is Sharia without simultaneously assaulting Ecclesiastical courts and those sorts of things?
I suppose one way to go about it would be to make it a crime for any non state sanctioned court to issue criminal-like penalties and make the sentence very severe for anyone conspiring to do so? I don't know.
What I do know is that while Shortey probably means well, he's just not a very educated guy and he's striking out after the wrong thing.