Our Opinion: Sharia, chimera in U.S. courts

Tuesday, March 15, 2011

Every legislative session brings a proposal in search of a press conference.

A contender this year is proposed legislation to prohibit Missouri courts from applying laws from foreign countries, including those based on Sharia.

Sharia is the sacred law of Islam. State Rep. Don Wells, R-Cabool, contends the ban is necessary because the Islamic law is spreading and could threaten Missouri.

A bill by state Rep. Paul Curtman, R-Pacific, offers a broader approach to ban Missouri courts from applying all foreign laws.

The proposed ban is largely a chimera, or foolish fantasy. The word derives from a creature in Greek mythology, the Chimera, composed of an absurd assortment of multiple animals.

We do not share the representatives’ fears that Sharia will be applied in U.S. courts because we see no credible threat.

Consider:

• We know of no circumstances where a U.S. court ruling in a civil or criminal case was based on foreign laws.

• In the United States, judges at every level swear an oath to uphold the Constitution and the laws of the U.S., and Missouri judges’ oaths also include the state Constitution.

• Sharia is a religious law, not a governmental one. Although Sharia deals with some secular topics, it derives largely from the Quran, the religious text of Islam.

We believe a court ruling based on religious law — if it were to occur in the U.S. — would be an unconstitutional violation of the First Amendment.

The amendment begins: “Congress shall make no law respecting an establishment of religion ...”

If legislative branches are prohibited from making religious laws, it follows that judicial branches may not issue rulings based on religious laws.

The representatives may have generated some publicity with their proposals. But mostly they are inciting needless fears by creating a chimera.

More like this story

camdawggy 2 years, 3 months ago

"Consider:

• We know of no circumstances where a U.S. court ruling in a civil or criminal case was based on foreign laws."

You know, it appears that you guys have missed the New Jersey court ruling that was overturned on appeal, in which the judge ruled for the male abuser who's defense was... Sharia Law.

Now having been educated as to why this is taking place in Oklahoma, here, and elsewhere in the country, you should reconsider your position, since it was postulated on what is apparently bad information.

You're welcome.

JMO 2 years, 3 months ago

As you pointed out, that case was overturned by the court of appeals. The trial court's decision has no value as precident. The appellate court's decision however, not allowing that defense to stand, does. Foreign laws are not applied by the courts in this country. In some circumstances, they have to be looked at, for instance, they may have to determine if a marriage or contract is valid under the laws of the issuing country, but even then courts disregard foreign laws if they conflict with american public policy. This has been the law since the late 1800's. I believe the US Supreme Court case setting this out was Hilton v. Guyot, 159 U.S. 113 (1895).

justaword 2 years, 3 months ago

Courts of original jurisdiction err and are overturned frequently. The case in New Jersey involved two Muslims, a union of a man and woman. The wife didn’t wish intercourse and the husband did (and did). The issues are brought before state civil authorities. Sharia law was not mentioned in court documents, nor should it have been. Regardless of one’s interpretation, the judge erred. If our legislature took up every case in fifty states that was overturned, they would be in session 24/7/365.

Another case, say a fictional, similar one could also err and be overturned. This case would involve two Christians. This case might involve Colossians 3:18: “wives, submit…” or 1Corinthians 7:5: “Do not deprive one another…” What then? Would our GOP (Gadfly Old Party) in every state of the Union introduce legislation requiring trail judges to not consider the Christian Bible?

Too bad for the voters, the New Jersey case didn’t involve two Muslims and a puppy mill. Then our GOP would have been happy the voters of Missouri had spoken by referendum. I encourage all legislators to forget the culture wars and get down to the business of governing.

camdawggy 2 years, 3 months ago

The point is that it DID happen. And likewise, the laws are being made to ensure that it does not happen again. The writer's position is that it did not happen. And so the entire piece is flawed in determining that people are "going insane because it never happened". It CAN happen here. Until the laws ensure that it cannot.

pegassuss2525 2 years, 3 months ago

So can rulings that take into account Amish, Wiccan, Christian, Jewish law among others. I don't see a mass panic to single them out. The process in place works. This is a reaction based on half truths and not enough knowledge. Do we really want to have another McCarthy era?

bluesfan13 2 years, 3 months ago

Have you people even read the New Jersey case??

It's about a woman attempting to get a restraining order against her ex-husband, NOT a criminal case. When they were married, the husband believed he had the right to have sex with his wife whenever he wanted, and did so against her wishes. Once they divorced, he no longer felt that he had that right, so there was no reason to issue a restraining order. Being Muslim has no direct impact on the decision. Courts rule that way for Christians, Jews, etc., all the time. The criminal case against him is a completely separate matter.

camdawggy 2 years, 3 months ago

They were still married at the time. From the judge's ruling:

"This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited."

Perhaps you should re-read the ruling before supposing that they were divorced, and before supposing that the decision was not based on the religious precepts in which he was an adherent. The appeals court even made that determination, and supposing that the decision was not as such, means that the appeals court was wrong, and therefore, your belief is that it is okay for a husband to force his wife to have sex if it is okay in Sharia Law. And hence, a need for such legislation to clear the matter up.

pegassuss2525 2 years, 3 months ago

Then include all religions. Do not single one out.

bluesfan13 2 years, 3 months ago

They were separated, in the process of a divorce. Is that better? I stand behind my reasoning. If a family court judge feels that a person is in no danger of being stalked or abused, there is no reason to issue a restraining order. I do not believe that it is ok for a husband to force his wife to have sex. HOWEVER, that is a completely separate matter for criminal courts to decide. If a husband forces his wife to have sex, and she wants to divorce him, and the judge feels that there is no reason to believe that he'll track her down for sex (or other purposes), then there's no reason to issue a restraining order. I'm not saying that he won't treat the next wife the same way, as it's likely that he would (and I believe he would/should be punished for that action). I'm saying that there is no reason to believe that he would track his ex down and continue his treatment of her in this manner, which is exactly what the original judge ruled.

camdawggy 2 years, 3 months ago

The ruling was based on one. Government is neither establishing a religion, nor impeding on a religion's ability to operate. This ruling focused on ONE person, and their belief that they were allowed to do as they chose by merely stating a belief that they were allowed to. It was a just ruling by the appeals court to determine that the lower court was wrong in allowing a religious belief to trump the law. If they focus on ALL religions, then the government is making laws for religion, and hence, establishing a religion, which is against the law. So no, they can't focus on all religions, without becoming a religion. So having a law that says that they can't use religion in rulings may be redundant, but it may also apparently be VERY necessary in guiding the courts. It's a good law, because it prohibits the court from allowing religious-based rulings, which they have tried to do. And that is what checks and balances are for. The legislature is right.

pegassuss2525 2 years, 3 months ago

According to you "If they focus on ALL religions, then the government is making laws for religion" - What do you think this is? As stated by several, this is a reactionary measure by someone who has no knowledge of Islam or Sharia law. They and you are reacting adversly to Islam and excluding all other religious based defenses. Please take time to understand Islam BEFORE reacting to those who are using fear to forward their own agendas.

asb 2 years, 3 months ago

The editorial is totally correct, there is no threat to Missouri from Sharia law. This bill is anti Islam manure meant to beat a hatefull drum that will benefit nobody but the ego and brutish constituents of its sponsor and supporters. There is no legal basis for it, and nothing but hate and fear can come of it. Any lower level judge can make a bad ruling no matter what laws that ruling are based on, that's why we have the thousand-plus years old process of appeal.

JMO 2 years, 3 months ago

The appellate court found as follows:

"As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State's statutes as the result of his religious beliefs. In doing so, the judge was mistaken."

Legally speaking, this is the important decision - and the correct one. Religious beliefs do not take precedence over the law. Old-school Mormons can't commit polygamy. Christian scientists have had their children given medical care over their objections. And Muslims can't rape their wives. There is no need for legislation, because it is already the law.

Incidentally, legislation should not "guide the courts". The courts determine if the laws are constitutional and enforceable. I suspect any law specifying one religion can't be considered, will be struck down.

camdawggy 2 years, 3 months ago

In the Bible, Paul died while waiting for his audience with the Roman Emperor to state his case. If bad cases are made, and the appeals process takes a long time, maybe it's not a bad idea to have a law in place that prevents needing "the Emperor's Ruling" (or the Supreme Court review, in our case) in the first place. I think the law is a good idea.

camdawggy 2 years, 3 months ago

The court system was designed so that innocence was protected over even the guilty. The court system, therefore, has little room for mistakes, because mistakes compromise the innocent that our court system is designed to protect. Therefore, you may think that I am wrong, but the appeals court, and every other judge who has weighed in on it, thinks that I am right.

bluesfan13 2 years, 3 months ago

You're missing the point... THIS WASN'T A CRIMINAL CASE. This was a hearing to determine if a restraining order should be issued. What evidence has been provided that an order of protection should have been issued? The appeals court was out of line (using religion as a reason to overturn the original ruling). Unless evidence was given to show that it was probable or likely that the man would continue the previous acts towards his (now) estranged wife, no restraining order should have been issued.

JMO 2 years, 3 months ago

I'm sorry, perhaps I misunderstand you. Are you saying the appeals court and every other judge thinks this law is necessary? Because I think they'd say the opposite.

You are right, appeals take a long time. People go to prison for years before having sentences overturned. Parent's pay thousands of dollars in support before an order is found to have been improperly calculated. People go without income for years, awaiting Social Security disability appeal determinations. It happens. Trial courts can make errors. So can Appellate Courts. That's part of the reason why there are so many appellate levels.

But that doesn't mean there needs to be a law codified when the issue has already been decided and followed by the courts for over a century.

JMO 2 years, 3 months ago

And? Granted, I didn't have time to do more than skim these articles, but nothing I saw in any of these articles change the law as it stands now. Nor do they set out any reason why there should be some law passed that singles out one religion. All they are, are opinions that foreign decisions and laws can be looked at, much as one looks at the opinion and reasoning of a law review artilce in deciding a case. That's not the same as making a foreign law apply in the US. Further, it is obviously necessary in some cases to look at foreign law and a law that prohibits consideration of any foreign law will block some cases from being heard at all.

JMO 2 years, 3 months ago

Oh right, forgot who I was talking to. I'm not even going to attempt to explain how progress is a good thing.

JMO 2 years, 3 months ago

While I do disagree with you, I also apologize for being rude. I had a horrendous headache when I wrote that and I wasn't making any attempt to be polite. I'm sorry. Nevertheless, I don't think that courts looking at how other countries have addressed certain issues is anything new. And I think it's a good thing, in its place. It is not the same thing as "applying" foreign law or using it in place of US law, which is of course what people fear will happen. Like it or not, we live in a world with other countries, with a world economy. The courts and the counrty can't operate in a vacuum.

JMO 2 years, 3 months ago

Clearly, we disagree on this issue, which does not surprise me. I assume you then do not think it is appropriate for a court to ever make a decision, considering, in part, what the rest of the civilized world thinks about the issue under discussion? Using Simmons v. Roper as the example, you disagree with the Court noting that most countries do not execute minors when deciding whether or not we should do so?

JMO 2 years, 3 months ago

Missouri law already said they couldn't be executed if under 17, and the Supreme Court decided under 18. That one year really doesn't seem to be much of an impositiion, but ... well I guess I get your point. I disagree with you, with you but I get it.

Am I reading your post correctly, that you have no problem with considering what other nations think when it comes to interpreting statutory provision or admin. regulations? Because if that's the case, a law or amendment that says "No court can consider or apply foreign or Islamic law" would prohibit that. And I'm sure you agree, legally it's a necessity at times.

My problem with such a law is that it's an extremist reaction to no real threat. How foreign laws are considered was decided a century ago.

JMO 2 years, 3 months ago

"So, you are saying the Supreme Court can simply change a state law because the majority of the court thinks their view on the policy is better?" Where did I say that? What I do think is that the Supreme Court has the final say on interpreting constitutional matters, and they found under 18 to be cruel and unusual. Frankly, since I think having 17 as the cut off for "adults" for criminal law purposes is stupid, when all civil law says 18, I pretty much agree with the court. But that isn't the issue we should be discussing.

You think my view that there is no real threat here is short sighted. I think feeling there is a real threat is paranoid. Let's agree to disagree there.

As for what I mean by how foreign laws are considered by the US was decided over a century ago, see my very first post on this thread. I'm not going back into it again here, because these replies are getting hard to read.

JMO 2 years, 3 months ago

That's where I disagree. If I understand your position, you think the state courts should have had the final say; Missouri said 17 and that should have been the end of it. I think the final say on what is "cruel and unusual" is up to the US Supreme Court, and I think they have the right, even the duty, to draw that line when that issue came before them and they said 18, so 18 it is. I don't always agree with the Court's decisions, but someone has to have the final say and I believe it is the US Supreme Court.

A question...You said, "we can readily determine what that means by looking at the practices at the time it was written. Such executions were allowed." But, surely you don't think that only what was considered "cruel" in 1791 is what should be considered "cruel" today? I mean, they still put people in the stocks in the 1700's. What was adequate housing for inmates in 1791 surely wouldn't stand up to today's standards.

JMO 2 years, 3 months ago

You raise interesting points, and ones I'm not really wanting to debate at this time. (If, for no other reason than we're running out of space.) Besides, I think we've both stated our positions clearly enough.

iac249 2 years, 3 months ago

In Islamic marriages, the husband must pay his wife a dowry (called a mahr) an amount agreed to in the marriage contract. The amount can be quite substantial. It is not necessarily due at the time of the marriage, but it becomes due immediately if the husband files for divorce. Does this mean, then, that the wife, who may have children to support, will have no legal recourse if the husband decides to skip out on his obligation to her? After all, for a court to enforce such a measure, it would have to consider Sharia, since the mahr is prescribed by Sharia.

I can assure you this particular issue happens, and more frequently so than the New Jersey case mentioned elsewhere in this thread. In this case it is not so much about a case of shari'a as it is about a New Jersey court failing to follow New Jersey law. Of course the appellate court reversed the decision.

In fact, I'd have to wonder if any Muslim couple finding themselves in a Missouri court would find the court cannot recognize their marriage as a result of the bill, since Islamic marriages are quite different than Christian ones (Islamic marriages are based on a mutual contract signed by the husband and wife) and based entirely on Sharia.

There has been a recent rash of such bills being proposed in various state legislatures, and seems to be part of the growing trend that believes there is some giant conspiracy to overthrow the US Constitution and supplant it with Islamic law. It's a curious, if not somewhat disturbing, shadow of paranoia. Ultimately such bans will likely fall down under court challenge - a federal court recently held that such bans would likely violate the Supremacy Clause and the First Amendment - so they are a monumental waste of time. Our judges are equipped with the constitutional framework to refuse to recognize a foreign law. In the end, our Constitution is the law of the land.

Supreme Court Justice Scalia said in a 2006 speech it was not proper for Congress to direct the Supreme Court in how it does its job. In particular, Scalia said lawmakers should not pass bills forbidding judges from using foreign law in its decision-making.

Scalia's quote, which I took from a CNN article goes: "’It's none of your business," he told Congress. "No one is more opposed to the use of foreign law than I am, but I'm darned if I think it's up to Congress to direct the court how to make its decisions."

I'm inclined to believe many such bills infringe on the "separation of powers", which is an important part in how our government should operate. However, I've reviewed the proposed bill, and it calls for an amendment to the Missouri constitution. In this case perhaps not a separation of powers issue, but I'm not so sure I want to see some strange bit of paranoia mucking up our Missouri Constitution.

pegassuss2525 2 years, 3 months ago

First - the correct term for a person of the faith of Islam is Muslim not Islamist. Second, Muslims are NOT trying to "subvert" any country's laws that they live in through Sharia. Third, terrorists took those planes into the world trade center buildings Not Islam. Yes those terrorists were of the Islamic faith but NOT all Muslims are terrorists.

JCLifer 2 years, 3 months ago

Have you read the koran?

pegassuss2525 2 years, 3 months ago

Yes, I have

iac249 2 years, 3 months ago

If you are going to pass a law restricting the application of one religion's law, then you must pass the law to restrict the application of all religions' laws (such as the Mosaic Law of Judaism). Otherwise you are clearly moving the government to state-approved/disapproved religions.

justaword 2 years, 3 months ago

Thank you iac249 for your inputs. I find them refreshingly informative.

Religion and government makes for a slippery slope. Once government, or an institution-say a school, provides/accommodates religion, it must do so for all. We might recall the political wedge issue of prayer in public school.

Today, an AP wire about religion is pertinent. Two inmates in Nebraska were given religious privileges, previously denied, by the state. The two inmates practice Theodish Belief, which is a form of heathenism. They previously had been allowed only the privilege of combining their worship with Asatru, another form of heathenism. The two Theodish Belief followers contended making them combine services was akin to the difference between Catholicism and Protestantism. Quoting the wire article, “Asatru is radically different and blasphemously obnoxious.” In all of history's religious wars, even present, does this sound familiar?

Like it or not, we have religious freedom in this great country. The US District Court in Lincoln, Nebraska says so-for all of us.

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