Sharia Law observed in State Courts?

• O-Trap

  

  Read an article recently while doing some research for work.
  
  http://www.usatoday.com/news/nation/2010-12-09-shariaban09_ST_N.htm
  
  Interesting rub between freedom of religion and the courts' ability to enforce the law otherwise.
• fish82

  

  Muneer Awad is doing a nice job trying to get his 15 minutes. In the end, he'll get a healthy dose of smackdown.
• fan_from_texas

  fish82;636758 wrote:Muneer Awad is doing a nice job trying to get his 15 minutes. In the end, he'll get a healthy dose of smackdown.

  
  We'll see. We have a long and well-developed common law regarding conflict of laws, which generally supports his position (except in situations of great state interest). US courts routinely analyze and apply foreign law, and any attempt by state legislators to change this will have bad consequences for US corporations.
  
  E.g., Company A agrees to sell Property X for amount Y to Company B. Company then sues Company A in Russia, which says that X can only be sold for Z, not Y, and Z is much less than Y. If the US accepts Russian law, Russia will accept US law. But if we implement these laws to keep out foreign law, then they refuse to consider our own. This means that Companies A & B that create a contract in the US under US law may have their claim adjudicated in some other country that can assert jurisdiction (where they both have assets, which will affect any US-based multi-national corporation) and then apply local law, creating an outcome that neither party envisioned when they contracted.
  
  Legislators push these sort of reforms through without giving any thought to the potentially disastrous consequences they will have on citizens/companies doing business abroad.
• jmog

  This should be a resounding NO. Can you imagine the outrage if judges started using the morality of the Bible in the decisions? The left would go ape crap if things like abortion control and stricter divorce laws were oases based on the Bible.
  
  I don't know how the left can "preach" separation of church and state and then at the same time want to include Shari'a law in the courts. Kind of hypocritical if you ask me.
• jmog

  Fft with regards to foreign relations you are correct but the cases of husband raping his wife or other domestic cases allowing Shari'a law is retarded and goes directly against the first amendment.
• O-Trap

  

  jmog;636777 wrote:Fft with regards to foreign relations you are correct but the cases of husband raping his wife or other domestic cases allowing Shari'a law is retarded and goes directly against the first amendment.

  
  Which is funny, because his claim is that the Freedom of Religion part of the First Amendment is what should allow Shari'a Law to be recognized.
• Manhattan Buckeye

  From what I understand the law is silly, yet innocuous. Presumedly Oklahoma has a choice of law provision, from what I understand the new bill says you can't use foreign law to change what is already in place (i.e. the choice of law provision).
• BoatShoes

  jmog;636777 wrote:Fft with regards to foreign relations you are correct but the cases of husband raping his wife or other domestic cases allowing Shari'a law is retarded and goes directly against the first amendment.

  
  This is what the article says:
  
  "Earlier this year, for example, an appeals court in New Jersey overturned a state court judge's refusal to issue a restraining order against a Muslim man who forced his wife to engage in sexual intercourse. The judge found that the man did not intend to rape his wife because he believed his religion permitted him to have sex with her whenever he desired."
  
  What this is saying to me is that the trial court judge found that his genuine religious belief that it is impossible to rape your wife due to your religious belief barred him from having the requisite mens rea to be found guilty of rape. The judge looked to the sharia law as persuasive authority to determine how to properly apply the law in our common law system. That's what seems to be the case to me. And, any relevant evidence, including a person's adherence to biblical teachings would be admissible to determine that element.
  
  I could be wrong but that's what I get from it saying "the judge didn't believe he intended to rape her"
  
  FWIW it's worth some of our states still hold that a spouse can engage in sex with the other spouse without their consent because they "consented" to the sex when they got married.
• Manhattan Buckeye

  BoatShoes;636799 wrote:This is what the article says:
  
  "Earlier this year, for example, an appeals court in New Jersey overturned a state court judge's refusal to issue a restraining order against a Muslim man who forced his wife to engage in sexual intercourse. The judge found that the man did not intend to rape his wife because he believed his religion permitted him to have sex with her whenever he desired."
  
  What this is saying to me is that the trial court judge found that his genuine religious belief that it is impossible to rape your wife due to your religious belief barred him from having the requisite mens rea to be found guilty of rape. The judge looked to the sharia law as persuasive authority to determine how to properly apply the law in our common law system. That's what seems to be the case to me. And, any relevant evidence, including a person's adherence to biblical teachings would be admissible to determine that element.

  
  Yeah and the appeals court bitch-slapped him. Mens rea doesn't excuse someone from thinking the law doesn't apply to them. The trial judge was an idiot, and we get lame legislation like the Okie law because of it.
• jmog

  BoatShoes;636799 wrote:This is what the article says:
  
  "Earlier this year, for example, an appeals court in New Jersey overturned a state court judge's refusal to issue a restraining order against a Muslim man who forced his wife to engage in sexual intercourse. The judge found that the man did not intend to rape his wife because he believed his religion permitted him to have sex with her whenever he desired."
  
  What this is saying to me is that the trial court judge found that his genuine religious belief that it is impossible to rape your wife due to your religious belief barred him from having the requisite mens rea to be found guilty of rape. The judge looked to the sharia law as persuasive authority to determine how to properly apply the law in our common law system. That's what seems to be the case to me. And, any relevant evidence, including a person's adherence to biblical teachings would be admissible to determine that element.
  
  I could be wrong but that's what I get from it saying "the judge didn't believe he intended to rape her"
  
  FWIW it's worth some of our states still hold that a spouse can engage in sex with the other spouse without their consent because they "consented" to the sex when they got married.

  
  So, if my religious beliefs say I can marry more than one woman at a time, does that mean I should NOT be charged with polygamy?
  
  If my religious beliefs say i am allowed to beat my wife, does that mean I should NOT be charged with domestic abuse?
  
  Come on, you can't be serious with this.
• fan_from_texas

  jmog;636857 wrote:So, if my religious beliefs say I can marry more than one woman at a time, does that mean I should NOT be charged with polygamy?
  
  If my religious beliefs say i am allowed to beat my wife, does that mean I should NOT be charged with domestic abuse?
  
  Come on, you can't be serious with this.

  Like I stated earlier, the conflicts of laws provisions allow a state to ignore foreign law in situations where a significant state interest is involved (which almost always applies to domestic/family issues). So in your example, I don't know of any court in the US that would excuse your actions because of reliance on foreign law, and there's no need to pass a law to make it that way. The common law already gets us that outcome.
  
  In my understanding, the use of foreign law is almost always limited to contractual interpretation issues. The general rule that most countries follow is that if we allow their laws to be used to interpret contracts, they'll allow ours. If we stop allowing theirs because of a very poor understanding of our current conflicts provisions, we stand to lose a lot (by introducing uncertainty and even more provincialism than already exists into contracts involving foreign corporations) without much gain (because our conflicts laws already excuse us from needing to follow foreign law on domestic issues).
• fan_from_texas

  jmog;636777 wrote:Fft with regards to foreign relations you are correct but the cases of husband raping his wife or other domestic cases allowing Shari'a law is retarded and goes directly against the first amendment.

  
  And . . . our existing laws already say that states can disregard foreign law in domestic cases. This issue is a red herring. People are getting bent out of shape and trying to pass a law that lets us do what the existing law already lets us do.
  
  On a domestic side, passing these laws will have zero impact on what is already done, which is already covered by our current conflicts principles. But they will have an impact when other countries retaliate and throw out our contract provisions choosing a particular law because we passed a stupid law to attempt to snub them.
• jhay78

  

  jmog;636775 wrote:This should be a resounding NO. Can you imagine the outrage if judges started using the morality of the Bible in the decisions? The left would go ape crap if things like abortion control and stricter divorce laws were oases based on the Bible.
  
  I don't know how the left can "preach" separation of church and state and then at the same time want to include Shari'a law in the courts. Kind of hypocritical if you ask me.

  I agree with everything there except the "kind of". It's hypocrisy at its finest.
• BoatShoes

  jmog;636857 wrote:So, if my religious beliefs say I can marry more than one woman at a time, does that mean I should NOT be charged with polygamy?
  
  If my religious beliefs say i am allowed to beat my wife, does that mean I should NOT be charged with domestic abuse?
  
  Come on, you can't be serious with this.

  
  I didn't say I endorsed that view. I merely made a conjecture as to what the judge may have had in mind as opposed to some favoritism in regards to Islam. If you'll notice the New Jersey case was about a restraining order and not the particular criminal act for which he was desired to be restrained. Without reading the case I can't really say much else without removing any more doubt that I'm a fool with all of my other posts on this forum anyways. As MB points out this was overturned on Appeal and probably rightly so.
  
  Bottom line, as it pertains to O-Trap's initial query, this in no way brings any U.S. citizen under the rule of Sharia Law and that won't happen and these kinds of laws being created by governments to try to prevent this non-event from happening will likely cause more harm than good which is the general rule when the government does something as the mantra goes.
• iclfan2

  

  fish82;636758 wrote:Muneer Awad is doing a nice job trying to get his 15 minutes. In the end, he'll get a healthy dose of smackdown.

  
  Yea he sounds like a douche bag. What if you religion allows you to kill someone? Or something else? This country needs to quit bowing to Muslims.
• BGFalcons82

  

  iclfan2;637608 wrote:Yea he sounds like a douche bag. What if you religion allows you to kill someone? Or something else? This country needs to quit bowing to Muslims.

  
  You'll get your wish soon as we will be bowing to the Chi-comms before much longer.
• CenterBHSFan

  

  I think it would be cool to incorporate some Hasidic strictures into our law.