Oklahoma Anti-Sharia Law Struck Down


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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51 Responses

  1. Avatar Burt Likko says:

    There’s already some good comments going on at the sub-blog. You may want to check those out.Report

    • Avatar Tom Van Dyke says:

      Burt, Obama’s war on religion, for yr expert consideration. Just because Rick Perry was too stupid to articulate it, that doesn’t mean it’s not happening.

      I think this is where the action is, free exercise, not establishment cases, which are more symbolic than substantive.

      [The link is to a advocacy group, and so is contentiously written.  But I’ll use the link, for the many links it offers on the subject to the curious reader.]




      • Avatar Mike says:

        “War on Religion”

        Do yourself a favor TVD. Stop smoking crack.Report

        • Avatar Jaybird says:

          Had Mike been born two years later, he would have said “take a chill pill!”

          Two years earlier? “Hello! McFly!”

          (I suppose we should be thankful that he didn’t say “Oh, that’s accurate… NOT!”)Report

      • Avatar Chris says:

        Apparently the war on religion is about hiring practices. First they make you hire women, then they make you wear stars on your shirts. You’re onto something, Tom. You really are.


        • Avatar Tom Van Dyke says:

          Mike & Chris: Fortunately, the Supreme Court agrees with me [unanimously!] that this is a free exercise question and the Obama Admin is wrong.

          See if you can register yr disagreement in some way that doesn’t make you look like uncouth idiots.  You’re embarrassing the rest of the lefties around here.

          [Altho I disagree with the gentlemanly Lib60 that there are “precious few” of you hereabouts.  But mebbe its the amount of noise you make and the clutter y’all create that contributes to that impression.]


          • Avatar Chris says:

            Tom, I wasn’t challenging the merits of the cases, just the “war on religion” implication. That is stupid, and plainly so. But it’s also par for the course.

            Also, there are very few lefties, but a fair amount of centrists and liberals.Report

            • Avatar Tom Van Dyke says:

              Chris, what is stupid [and ideological] was the Obama Admin bringing this case int he first place.  Damn right it’s ideology, and war.

              Although I use “war” advisedly and in context with Burt Likko, to whom my remark was addressed, and with whom I’ve had a long and productive correspondence on these issues.  You have such an exacting mind, I so wish you’d apply to more than rhetorical hairsplitting and fronting for The Agenda.  Of course we understand that the Administration’s argument was about job discrimination, but that it brought the case at all was clear ideology, and folly.

              That’s the name of this tune, and I for one have my faith restored in our system when the Supreme Court rules unanimously on such folly.  Every case isn’t 5-4, and even the 5-4s aren’t always split on conservative/liberal lines.

              This is good.


              • Avatar Burt Likko says:

                As to the purported ideological split on SCOTUS, check this out:

                ROBERTS, C. J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which KAGAN, J., joined.

                Notice how Scalia does not join either Thomas or Alito? Almost like they’re not really ideological clones of one another.

                Notice how ultra-liberal Kagan thought ultra-conservative Alito got it dead-on right?

                Notice how all nine of them agreed on the result?

                It’s not always Team Blue versus Team Red at SCOTUS. The robes they wear are all black. TVD has the right of it on that point, 100%.Report

              • Avatar Chris says:

                Tom, see Burt below, and well, common sense. If this is a “War on religion,” then the word “war” has no meaning. We might as well call American Idol a “war on music,” or the Michigan highway system a “war on cars’ suspension systems,” or your avatar a “war on fashionable sunglasses.”

                By the way, not being a liberal, or a progressive, Obama’s “Agenda” is not mine. In fact, I disagree with nearly all of it. Your “Agenda,” however, is clearly visible on the sleeves of that awful blue shirt.Report

              • Avatar Tod Kelly says:

                “We might as well call American Idol a “war on music,””

                Actually, I do.Report

              • Avatar Murali says:

                 or your avatar a “war on fashionable sunglasses.”

                It is isnt it?Report

              • Avatar Tom Van Dyke says:

                To the topic: the Obama Admin was really ugly on this one.

                Attacking my avatar?  We can only hope it was an attempt @ wit.

                Likko has met me in person, and I’m told by others as well that the avatar is pretty accurate.  I stroll into the bar, they know it’s TVD.

                Mr. Murali, true story, the sunglasses were selected as a radiation shield against the flames of the lefties.  Yes, as a joke, but they go nuclear on me at the drop of a hat.  I’m flattered that they feel they must.  I admit to being a threat to their rhetorical hegemony in fora like this.

                That’s why I put up with all the abuse.  ;-P  It’s my lot in life.  Pass the hemlock and a Guinness to wash it down with, por favor.



              • Avatar Burt Likko says:

                I had no trouble recognizing TVD the instant I saw him. My avatar isn’t quite as good at conveying my physical appearance, IMO.

                Of course, you could always come to Las Vegas over Memorial Day weekend, and decide for yourself if I’m right!Report

              • Avatar Chris says:

                Tom, to the substance, how was it nasty? It’s a court case, and in one particular case, not even one initiated by the Obama administration. Again, calling it a war is absurd, but par for the course. I’d ask you to imagine how you would react if such incredible hyperbole were used to describe the actions of conservatives (I’m not saying it never is, just to consider your reaction), but I’m also well aware that your biases make that difficult for you. So I won’t expect you to see what you’re doing. I’m just going to call it what it is.

                And I wouldn’t have guessed that your avatar had anything to do with your actual appearance. I was poking fun at the fashion (the sunglasses with what appears to be a Hawaiian shirt), assuming it was meant to be silly. I mean, the sunglasses are silly.Report

              • Avatar Chris says:

                p.s. I don’t look like a duck rabbit. Well, I dunno, in the right light, at the right angle…Report

      • Avatar Burt Likko says:

        I’m not at all sure that this can be laid at the feet of the anti-religion ideological crusaders of the Obama Administration. From the Sixth Circuit Court of Appeals decision which had been appealed to SCOTUS:

        On May 17, 2005, Perich filed a charge of discrimination and retaliation with the EEOC alleging that Hosanna-Tabor had discriminated and retaliated against her in violation of her rights under the ADA. On September 28, 2007, the EEOC filed a complaint against Hosanna-Tabor in the United States District Court for the Eastern District of Michigan alleging one count of retaliation in violation of the ADA.

        That’s the EEOC under the George W. Bush Administration, processing and administratively investigating the case for more than two years, then filing suit on its own behalf.

        An argument can be made that even under an ostensibly conservative administration like Bush’s, the EEOC is to a very real degree inherently liberal, in part because of the ideological biases likely to occur in the sorts of attorneys who seek work there, and in part because of the EEOC’s mission. But at the same time, the people on top are political appointees and they do exercise review power over what the staff lawyers do. If this hadn’t been at least minimally acceptable to some Bushman, it would never have been filed and prosecuted for the length of time it was.Report

        • Avatar James Hanley says:

          So can we expect TVD to fulminate about Bush’s war on religion?

          And does he actually think the President is reviewing every case the EEOC pursues, even when it goes up to the Supreme Court?

          Obama: OK, what’s on my agenda today?

          Chief of Staff: Continued civil war in Syria, Iraq seems to be falling apart, our mission in Afghanistan is spinning its wheels, Egypt’s military is still thwarting the democratic transition, the unemployment rate is still too high, Europe is on the verge of total economic collapse, and it looks like you will in fact have to face Mitt Romney in the election instead of Dick Perry.

          Obama: Yeah, but what about the important stuff?  Don’t we have an EEOC case about ministers in front of the Supreme Court?  Let’s focus on that.Report

          • Avatar Chris says:

            Obama: Can we get Congress to declare war on religion, or are we going to have to use the War Powers Act?Report

          • Avatar Burt Likko says:

            I’ll let TVD speak for himself, if he chooses to do so.

            For my part, I remain profoundly unconvinced that there is a “war against religion” underway. Something like the opposite appears to me to be what’s really going on: the government and its political leaders in particular seems to me to be as cozy with religious institutions and as eager to pander to believers as ever.

            And I also remain emphatic that Establishment Clause cases are at least as important as Free Exercise cases, if not moreso — and that both are ultimately aimed at vindicating the same right. For me, it’s not about questions like faith versus atheism — it’s about the point at which we citizens instruct our government to butt the hell out of our culture.Report

        • Avatar Mike says:

          Shhh. You’re injecting rationality into an issue that the nutwingers want to make a dog whistle out of.

          After all, to them “war on religion” means anything that isn’t the government directly funneling tax money into their churches and evangelism.Report

  2. Avatar Patrick Cahalan says:

    We need a comment migration system.Report

  3. Avatar Mike says:

    As I stated earlier, this is not as clearly a black-and-white issue as many people have made it.

    One major problem is the status of women in Muslim-dominated communities. A “parallel court system” in Canada has generated startling and shocking data regarding women being forced – by intimidation, threats, and even domestic violence – to endure the “Sharia Arbitration” system whereby they are stripped of the rights guaranteed them in Canadian law. Similar situations emerge from Britain’s system and the systems which have taken root in several European countries with startling regularity, including men getting off scot-free for spousal abuse by forcing the wife to “agree” to “Islamic Arbitration” in those situations.

    And then there’s the inanity of letting Shari’a law, which quite literally defines young girls as property, be the subject of “arbitration” in custody battles.

    I wonder if you’d be offering the same “Oklahoma violated the constitution” nonsense if it were a question of the FLDS’s “multiple marriage” and forced-marriage practices being practiced under some religious arbitration agreement garbage?Report

    • Avatar James Hanley says:


      None of that can trump the established laws of a jurisdiction.  On the other page somebody already pointed out that your complaint is properly about enforcement of the law, not any actual reduction in women’s/children’s rights.  If you can’t grasp that distinction, you need to refrain from commenting until you get it.Report

    • Avatar Matty says:

      Since the British example has been raised I went and found a relevant link. In brief there is a problem with strong social pressure on women not to excert their legal rights in divorce but no evidence that they can legally loose those rights on the decision of a Sharia tribunal.

      Key quotes

      Whilst it is accepted that parties can agree to arbitrate civil disputes using religious principles under the Arbitration Act 1996, family law matters cannot be the subject of contractually binding arbitration agreements. The jurisdiction of the family courts cannot be ousted by contractual agreement

      If a party to a family law dispute wishes to have a binding agreement they must issue proceedings in court. They may then agree to settle the case on terms but the court will only register such a settlement if it is in accordance with UK law and public policy and the court is satisfied that there was consent and equal bargaining power between the parties.

      [An arbitration] decision would only be enforced if compatible with UK law and public policy (Section 81 of the Arbitration Act 1996).  Therefore the unequal division of an estate between male and female children on intestacy would not be enforceable in the UK courts.

      They even touch on the Canadian case

       In Canada there was an arbitration law that permitted binding religious arbitration. It was used by Christian religious courts. In 2003 the Ontario Islamic Institute of Civil Justice announced its intention to establish a Sharia court that would offer binding family arbitration to Ontario Muslims. There was a government proposal to allow this. However after much campaigning by women’s rights groups, in 2005 the government of Ontario decided to ban all religious courts/tribunals from deciding family and inheritance law matters on the basis that there was a serious risk to the rights of individuals within minority groups. As part of the process a public education programme was launched to make vulnerable women aware of their rights under Canadian family law.

      Look I am not unsympathetic, we have serious issues with what might be termed separatism in Muslim (and other) communities.  A preference to settle disputes among themselves and ostracise or worse those who turn to the law for help. I can think of  things that would help like stronger policing of domestic abuse cases and education on womens legal rights but misrepresenting matters to pretend the law supports such ‘separatism’ does not help.Report

      • Avatar Burt Likko says:

        If it is the case that these women have a strong social incentive to not exercise these rights, but the legal ability to do so should they be willing to brave the peer pressure, I’m not really sure what more an appropriately-limited government can do.

        A Quaker has the legal right to own a gun (if not convicted of a violent crime).

        A Muslim has the legal right to eat pork.

        A Jehovah’s Witness has the legal right to celebrate her birthday.

        An atheist has the legal right to pray.

        If you don’t want to use your rights, no one can force you to do so. That’s what a right is. If you are compelled to do something, it stops being your right and starts being your obligation.Report

        • Avatar Matty says:

          There are two areas I think more could be done without turning a right into an obligation though I’m not sure how common these problems are.

          1. If people are being actively lied to about their rights then in the long term education on the subject should reduce the number who fall for the lies and increase the number who know what their choices are.

          2. If peer pressure spills over into violence or threats of violence we need to be robust in enforcing the existing laws against assaultReport

  4. Avatar Lyle says:

    Lets go back a bit in US history, and look at the Irish in the nineteenth century. How much use of the courts did they make for civil disputes? How often did the parish priest mediate things? Or take the German community or basically any rural semi-isolated community. Of course back then divorce was just plain not allowed so it was not an issue. Indications are that today orthodox Judaism has its own procedures, and will shun folks who go to the civil courts. The question is could you write the proscription to provide that unless both parties to a dispute agree in open court to be bound by any religious law it will not be used. But of course one candidate for president thinks that we need the christian version of sharia law, I would like to ask him other than because he is christian why is one religious law better than another?Report

    • Avatar Tom Van Dyke says:

      For the record, the Puritans left ecclesiastical courts behind in Britain, where they lasted with some strength through the 1800s.

      Ecclesiastical courts were very similar in scope to sharia ones, adjucating not only divorce and inheritances, but public drunkenness and landlord-tenant disputes.

      The key court finding here is that you can’t treat one religion differently from another.

      As for ” But of course one candidate for president thinks that we need the christian version of sharia law.” I don’t think this is seriously in play.Report

  5. Avatar George T says:

    The Oklahoma measure was poorly framed.  It should’ve simply said that Oklahoma courts can’t use foreign, international, or religious law as a basis for decisions.  Basically, if a law wasn’t written and passed by our elected representatives in accordance with the US Constitution or state constitutions, it’s not applicable in our courts.

    I would focus on preventing religious law from actually having legal weight other than contractual rights enjoyed by any other private institution, such as the NBA or NFL issuing fines to their players (which to me is still a rather questionable practice, which the strange result that a late hit on a quarterback can result in penalties vastly worse than a DUI, domestic violence, or accidentally shooting a gun in a nightclub).





    • Avatar Burt Likko says:

      The Oklahoma measure was poorly framed.

      On this, we surely agree.Report

    • Avatar Matty says:

      So an Oaklahoma businessman is exporting widgets to Mexico. He has signed a contract saying any disputes will be settled in a Mexican court and a dispute has arisen. The buyer wants the seller to go to Mexico and deal with it but he refuses. Buyer approaches Oaklahoma court asking them to hold the seller to his contract and order him to accept Mexican jurisdiction over the dispute and the court…..?Report

      • Avatar Burt Likko says:

        Dial it back one sentence. “The buyer wants the seller to go to Mexico and deal with it but he refuses.” So the buyer obtains a default judgment in the court in Mexico, since the seller refuses to respond to process in Mexico. The buyer has now prevailed.

        Now, the buyer comes to the Oklahoma court with a petition to confirm the money judgment from the Mexican court. The seller objects and says, “That court in Mexico had no authority to enter judgment against me,” and the Oklahoma court says, “The hell it didn’t. You agreed in your contract that it did. Judgment confirmed.”

        Buyer proceeds to levy on seller’s assets.Report

        • Avatar David says:

          Great right until we hit the “unconscionable” part of most contracts like that. EULA shrinkwrap crap that says “all parts of this contract will be governed by arbitration which shall consider first the laws of Ireland, Barbados, or Jamaica whichever is most favorable to the Big Corporation” for instance.Report

        • Avatar Matty says:

          I knew I’d get the details wrong but your improved example still seems to support my suspicion that telling courts to ignore all foreign law under all circumstances is unworkable.Report

  6. Avatar BlaiseP says:

    The definition of Sharia given at SQ 755 is entirely inadequate.  Sharia is a legal system first, Islamic second, taken almost entirely from Jewish rabbinic law when first enacted.   It was applied to Christians, Jews, Zoroastrians, Baha’i and many other religions under the Ottomans.

    Americans are such historical ignoramuses.   The Ottomans never converted anyone by force.   Where they met up with a large enough contingent of non-Muslims, they offered them the option of the Millet System.   I wrote a longish article about how the Ottomans managed all this over here.

    Therefore, it’s Lemon v. Kurtzman, 403 U.S. 602 which applies, not Lawson.

    1. The government’s action must have a secular legislative purpose;
    2.  The government’s action must not have the primary effect of either advancing or inhibiting religion;
    3.  The government’s action must not result in an “excessive government entanglement” with religion.

    Which is pretty much exactly how the Ottomans set up the Millet system anyway.   They not only allowed, but obliged these religious entities to manage justice within their own adherents.


    • Avatar Burt Likko says:

      BlaiseP, I am simply astounded at your intimation that the authors of SQ755 are ignoramuses.

      …No, not really.Report

      • Avatar BlaiseP says:

        I mean, really, Western jurisprudence arose from a distinctly religious framework.   Our lawmakers were wise enough to set up a framework which kept religion’s asinine absolutes out of the process.

        Islamic jurisprudence was no different.  Though as-Sharia has come to imply theocracies and all sorts of nasty inferences can be correctly drawn from how as-Sharia has been interpreted, for six hundred years, it formed the basis for a multi-confessional empire which made plenty of room for other religions.

        Islam isn’t Christianity.  Unlike Jesus Christ, whose kingdom was in the hearts of men, explicitly not of this earth, Muhammad was a king of this earth and did as kings do:  he made laws, he waged wars,  he was obliged to govern many sorts of people, not all of whom were Muslims.   The laws he made were astonishingly progressive for his own time.   The Awad case mentions as-Sharia in the matter of wills:  as-Sharia was the first legal system to grant wives property rights.

        Christianity would become a kingdom of the earth in time, contrary to the teachings of Jesus on the matter.   Islam’s once-vibrant tradition of jurisprudence would crystallize in amber, becoming as oppressive as it had once been progressive.

        I’m glad Awad was decided as it was,  but it seem the larger question remains, will this country tolerate any other traditions of jurisprudence beyond that derived from the Constitution.   The Amish, among whom I live these days, have their own sort of internal justice system of a sort.   Orthodox Jews have their own internal courts to which their own adherents repair for justice.   Is there some constitutional boundary which allows them to exist?   I suppose they wouldn’t have powers of arrest and suchlike.   I read Awad and see an improperly constructed case.    There’s more here than meets the eye, though.Report

        • Avatar David says:

          The laws he made were astonishingly progressive for his own time.  

          Uhm, no.

          Under kingdoms before Mohammed, your religion was immaterial to your status as a witness in court. Under Mohammed, non-Muslims are “worth less” in court as witnesses.

          Under kingdoms before Mohammed, women had the right to property and to work if they needed to. His wife owned her own business before she ever married him, and ran it quite successfully. By the time Mohammed was done, women had NO legal rights to speak of and widows were reduced to begging in the streets or pleading for some well-to-do man to take them in as a 3rd or 4th wife.

          Nothing about Islam was ever “progressive.”Report

          • Avatar BlaiseP says:

            Not so fast there.   Khadijah needed a man to do her trading for her.   Mecca was a political no man’s land, nobody ran it effectively except the people who controlled the Zamzam Well.Report

            • Avatar David says:

              Khadijah did perfectly fine for 3 years hiring men to roll the caravans, without “needing a man to do her trading for her.” She didn’t marry for that, she married Mohammed because she wanted the political influence of marrying the grandson of a tribal leader.Report

              • Avatar BlaiseP says:

                So much for your assertion about Khadijah’s independence.   Mecca was a Mos Eisley, full of scum and villainy.Report

              • Avatar David says:

                Khadijah was the Demi Moore of the pre-Islamic world. She went looking for a moderately decent looking boy from one of the politically connected families, nothing more. Yes, I realize that I just described Mohammed the Murderer as nothing more than a really demented Ashton Kutcher.Report

              • Avatar BlaiseP says:

                A few centuries of the Ottomans obscured any semblance of Hijaz chicanery from Islam.   When they last paid the region a visit trying to pick up the pieces for their Rashidi satraps, Ibn Saud gave the Ottomans an excellent beating and reimposed the ancient patriarchal ways.Report