Transplanted Lawyer has an important, must-read follow-up post to his piece on Oklahoma’s “anti-Sharia” referendum in which he looks closely at the cases cited by proponents of the law and finds them to be remarkably ho-hum. He also delves into what Sharia law actually encompasses for purposes of its interaction with American courts.
Mark of New Jersey
Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.
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State Question 755 violates my rights as a non-Muslim, & robs me of the ground on which my own legal protections stand. Singling out the least popular religious group for disparate treatment licenses discrimination against any group that later become unpopular. If Oklahoma bans consideration of any and all religious traditions – Judeo-Christian values, the 10 Commandments, the concept of a Christian Nation, God, the Bible, and prayer, all common topics in Oklahoma legal discussions, I’d accept it as even treatment. But 755 violates Equal Protection and the Civil Rights Act. Also, by including international law in the ban, they violated separation of powers at the state level. Legislating which bodies of superior law and precedent may or may not be considered by a court, – e.g. common law tradition (an Oklahoma favorite), Blackstone, Justinian, UN resolutions, or the Geneva Convention – attacks judicial freedom. That’s a violation of *my* freedom as a citizen of Oklahoma to live in a fair and just body politic with the protections that separation ensures. Institutionalized discrimination violates the Constitution of Oklahoma, and must be struck down by a free and equitable people.Report
Remarkably ho hum?
Religious courts have no place in a secular democracy. Justice, equality and respect are for people, not for belief systems. By people I mean men AND women. If you would like to see the full impact of religious laws on a population, study Iran, a theocracy. By allowing Sharia law into America with this *ho hum* attitude you are tacitly allowing arbitrary theocratic dictats to hold sway. There are very good reasons for opposing these religious courts.
The main one being that they are unlawful in a democracy where laws are passed by Governments elected by the people. Religious courts are ruled by religious community leaders who interpret the religious book known as the Qu’ran in a haphazard, undisciplined way. The “Courts” do not even record the proceedings. There is only one man siting in judgement. The decision is made according to his interpretation and how he might be feeling that day. Since Islam gives rights overwhelmingly to men, it is not too difficult to see where injustice may occur.
According to human rights campaigner Gita Sahgal, “there is active support for sharia laws precisely because it is limited to denying women rights in the family. No hands are being cut off, so there can’t be a problem …”
From Maryam Namazie, human rights activist and spokesperson for One Law for All : “Under sharia’s civil code, a woman’s testimony is worth half of a man’s. A man can divorce his wife by repudiation, whereas a woman must give justifications, some of which are difficult to prove. Child custody reverts to the father at a preset age; women who remarry lose custody of their children even before then; and sons inherit twice the share of daughters.”
If this sounds medieval, its because it is. Our secular laws and courts have moved on from this androcentric view. Religious Islamic courts have not. This report gives an excellent overview of the impact of Sharia Law in Britain and the opposition to it :
http://www.onelawforall.org.uk/new-report-sharia-law-in-britain-a-threat-to-one-law-for-all-and-equal-rights/Report
I won’t dispute that some aspects of Sharia are troubling to me. But some aspects of rabbinic law are troubling to me, too. And we already have recognized binding arbitration in rabbinic courts, with no trouble and no worries about a Jewish takeover. Would you say we need to exclude the Jews from making laws that are voluntarily imposed as well?
See, I’m actually of two minds on this. On the one hand, I don’t care for the content of these legal systems. I’m an atheist, so all religious law is bunk to me. But if it saves taxpayers’ money, and if people really do want to live under a different law code, and if they are violating no rights of mine, then I don’t think it’s right to stop them. On the contrary, polycentric law is a reasonably good guarantee of liberty, provided only you can choose the legal system under which you, in the future, will be judged.Report
From a Muslim apostate, a personal experience of the Islamic code as it pertains to women:
http://www.faithfreedom.org/Testimonials/parvin.htmReport
There are many things that don’t affect me personally but I don’t dismiss them because of that. Moreover I think it my duty to work toward a free society in which everyone has equal rights under the law, not just you, I or non-Muslims.
The sticking point in your argument is “if people really do want to live under a different law code”. The voluntary nature of Sharia courts is in dispute. Fariborz Pooya, Chair of the Council of Ex-Muslims of Britain, says: “Sharia law is not voluntary, but rather compulsory by its very nature. To deceptively talk of the voluntary nature of these courts is a means by which Islamic groups give legal cover and pretence to their discrimination. For the Government to accept this argument is akin to outsourcing the legal system to Islamic groups. This is detrimental to, and a betrayal of, the rights of our most vulnerable citizens to being equal before the law.”
Journalist Rahila Gupta says: “accommodating alternative systems of justice is not about choice or tolerance in a pluralistic society; it is not about Muslim women’s autonomy. These demands emerge from fundamentalist politics – however they are dressed up.”
Maryam Namazie says: “Sharia law promotes fragmentation and social conflict. It imposes different standards and norms and a parallel legal system for people deemed “different.” Rather than an expression of social cohesion, Sharia law in Britain is a capitulation to, and an attempt to placate and appease, the Islamists.”
Gina Khan, a human rights campaigner, says: “Under British law we are treated as equal and full human beings. Under the antiquated version of Sharia law that Islamists peddle, we are discriminated against just because of our gender. These Islamists use our plight by meddling in issues like forced marriages, domestic violence and inheritance laws for their own political agenda. To allow them to have any sort of control over the lives of Muslim women in British communities will have dire consequences.”
To say that as long as these people are not trespassing on your rights then its okay to allow them to govern themselves is a cop out. Frankly, if the Klan decided they wanted to set up their own Klan style courts (whatever that would entail, but go with this) would you think that was okay? Or any other group of people? Or are you simply guilty of giving religious systems of thought more tolerance, no matter how discriminatory and unfair, than you would anything else, simply because they are religions.
The Jewish courts are beyond my comprehension, but I would probably guess that they are weighted heavily in favour of the male. I would not want any form of religious court anywhere. I don’t think parallel legal systems work in a secular society. Although one could hardly call a Sharia or Rabbinical court a legal system in the way we would understand it. Basing ones legal code on the writings of a 2000 year old doctrine or a 7th century illiterate desert tribesman hardly seems equitable with the body of English and American law that has been debated, disputed and subject to constant change and evolution as people have become more enlightened and fair minded. I think that is fairly obvious.Report
All well and good, and quite properly researched.
But knowing that in the State of Oklahoma there was no real threat of Sharia law overwhelming the Constitution, that those that drafted and trumpeted the law knew that, and that a major (though regional branch of) US political party knowingly stoked racist fear and resentment for no other purpose than the attainment of additional power….
How is any of that relevant?Report
Couldn’t they just pass a resolution indicating their dedication to the separation of church and state and be done with the problem?
Why single out sharia law?Report
Pretend for a moment that this is a discussion about prayer in homeroom.
Let’s say that someone is arguing that, hey, the other kids in the class don’t have to put their heads down. Besides, 99% of the school is Evangelical Christian!
I imagine the discussion would be something like “official sanction for something or other” while making the folks who didn’t want to participate feel somewhat ostracized for not belonging to the group (seriously, I’ve heard this argument given for why coaches praying with their team before a football game is unconstitutional).
It strikes me as Christians backlashing against Islam the way they feel they’ve been lashed against.
“WE CAN’T PRAY AT FOOTBALL GAMES? YOU DON’T GET YOUR OWN SPECIAL COURT!”
For reasons that, more or less, map to reasons that it’s wrong to pray as a team before a game.Report
There is no real threat of Sharia Law overwhelming the British legal system either.
The point is that Sharia Law is discriminatory, weighted heavily in favour of men and as such has no place in a democracy. Unless one is aware of the true nature of Islamic religious law then how can one legislate against it. The answer is one can’t.
The fact is Sharia Law stems from a set of religious edicts. Conflating race with religion only confuses the issue at hand, which is fair access to justice for all Americans, not just non-Muslims.
If one allows race into the equation, as Americans are wont to do at every opportunity, one effectively silences opposition to what is an unjust system of “law” which has no place in a secular democracy.Report
Please see my follow up post. Also, keep in mind that although they are both common law countries, the US and UK nonetheless have different legal systems and different underlying constitutional principles, not to mention very different Islamic populations.
Finally, I’d also add that the interplay between sharia courts and US law and Constitutional principle would of necessity be such that sharia law would ultimately have to adapt to secular liberalism and pluralism, rather than the other way around. Anti-sharia legislation, however, makes this impossible by forcing it further underground.Report
Just like the War on Christmas has resulted in underground creches?Report
Also, you may find this interesting : http://www.onelawforall.org.uk/wp-content/uploads/New-Report-Sharia-Law-in-Britain.pdfReport
You know saying anything has ‘no place’ in a free country is a contradiction in terms. The countries in question were founded by people who have always had their own religious courts. Ever watched Beckett? Think the Church doesn’t have ecclesiastical courts? The Anglicans actually excommunicated a man for being a slumlord. Ecclesiastical and religious courts are an essential way of indicating the religion’s claims to affect all of life. In any free country, one that allows religion, one must allow religious courts as the underlying premise stating that the religion claims to be more than a culture club or moose lodge. The lodges have their own courts, too, by the way. And there are even appeal/process elements of court life in most corporations – terminations can be appealed, for instance, within an organization. It gets a little nutty when we say a people can’t have their own courts because we don’t like them. We already have laws that say they don’t escape justice in the larger courts of the nation-state, so this is just an attack predicated on discrimination.
As for the argument that the internal courts of aren’t voluntary, neither are Christian courts in the same sense. By accepting authority in the religion, and its claims of what that authority entails and what parts of life it touches, you participate voluntarily in the courts, even if those courts judge you and you don’t like the judgment and repudiate them. The only time you’d have a case is if someone was forced to be a member of a religion – but the nation-states in question already prohibit that in their constitutions. So again, singling out Islam is just discriminatory. And again, these internal courts and the religions they uphold can judge a man for his business practices, and act on that, like the excommunicated Anglican slumlord, because they presume to touch, speak to, and govern the entirety of life. A religion, by its nature, is a claim about reality, not an addendum to a political dogma. In fact, to reify a superiority of the nation-state over religions, is to create of politics another religion, and it is for this reason that governments may not establish religions or interfere in them, which is the same thing.Report