10th Circuit upholds ruling blocking Shariah law ban/Denver Post

[Tierra_y_Libertad]

EEK! Quick! Start a war with Mali! Ban headscarves! Give more money to the Pentagon or we'll all be wearing burqa's!

http://www.denverpost.com/breakingnews/ci_19712265

The 10th Circuit Court of Appeals​ today upheld a ruling that blocked the implementation of an Oklahoma initiative barring judges there from considering Islamic law in court decisions.

The Denver-based appellate court, one rung below the U.S. Supreme Court, said it is likely the initiative will be found unconstitutional because it singles out Islam for discrimination. The court said Oklahoma hasn't shown any reason for the need to specifically ban Islamic law.

"Given the lack of evidence of any concrete problem, any harm seek to remedy with the proposed amendment is speculative at best," 10th Circuit Judge Scott Matheson, writing for a three-judge panel of the court, concluded.

Oklahoma voters overwhelmingly approved the initiative in 2010. The measure prevents judges from basing rulings on international law and then mentions Islamic law — known as Shariah — specifically.

[Nuclear Unicorn]

1. Isn't the law, apart from its obvious bigotry and xenophobia, kind of redundant?

If push came to shove and someone disagreed with a sharia based decision they could take their complaint to a US court. That means US law wins by default. It seems sharia based rulings within the US are only as binding as all parties involved care to make them. A single disputant and the whole pact falls apart.

[jberryhill]

2. Try selling food falsely labelled "Halal" at a supermarket

And see how fast a court is going to apply Sharia law to the false advertising claim.

Whether the food is Halal is a subsidiary fact issue to the claim.

Or "Kosher" for that matter.

[Nuclear Unicorn]

3. That's still a US law concerning false advertisement.

If a sharia court were to impose a penalty beyond something as basic as a boycott then that would be a different matter.

[jberryhill]

4. So explain this to me

I bought food labelled "Halal" at a supermarket, but I found out it was not Halal, and I bring a false advertising suit against the supermarket in court.

The supermarket denies my complaint and says the food is Halal.

What, in your mind, is the court going to have to figure out and rule on during the course of this suit?

You don't seem to grasp that the court is going to take testimony from both sides' Sharia experts, and then make a determination as to whether the food was or was not Halal.

That is a determination under Sharia law that a US court is going to have to make as a subsidiary fact question to that suit.

These kinds of things happen all of the time.

[Nuclear Unicorn]

6. Absolutely true but the question is: who imposes a penalty?

Sharia experts providing testimony as to what constitutes halal is one thing but what relief/penalty could a Sharia-based "court" provide? If the US civil court says a product is halal, even if Sharia experts say otherwise, a sharia court could do nothing to stop the manufacturer from doing so. This holds true in every aspect of US law. They cannot exact fines, divide marital assets in a divorce, assign custody rights, imprison, convict for blasphemy or anything else. Beyond public shunning they are powerless. Only US courts have those powers within US jurisdiction and if someone went to a shari-based court and later thought differently they can seek relief through US courts that will have the final say on the matter and woebetide the Sharia -- or any other unofficial -- court that attempts otherwise.

[jberryhill]

8. You are missing the point entirely

There are no "sharia courts", okay.

The Oklahoma law would have forbidden Oklahoma courts from resolving this dispute under Oklahoma law, and with the Oklahoma penalties, because resolving the case involves resolving a subsidiary question of Sharia law.

That's what was wrong with the Oklahoma law.

People have the right to enter into contracts. People have the right to have their contracts enforced by state and federal courts. So, if we are in Oklahoma, and I enter into a contract with you to deliver 100 pounds of Halal beef, and you don't deliver Halal beef, I have the right to sue your ass in an Oklahoma state court for not delivering beef that was Halal.

I don't know where you are getting this "sharia-based-court" nonsense.

The law in question, which the OP was about, would have prevented me from enforcing my contract with you in an Oklahoma state court. Not some imaginary sharia court in your head - an OKLAHOMA STATE COURT WOULD HAVE BEEN PROHIBITED FROM RULING ON MY ENGLISH COMMON LAW BREACH OF CONTRACT CLAIM because, as a necessary step to ruling on that claim, the OKLAHOMA STATE COURT would have to make a preliminary finding about whether or not the meat was Halal.

I understand you don't at all get how this works, what the Oklahoma law was about, or what was the ruling reported in the OP.

Nonetheless, what I am trying to convey to you is that there are numerous situations in which state and federal courts have to resolve questions of religious law as subsidiary issues to contracts, advertising, employment, probate, and a raft of other normal everyday statutory and common law causes of action.

What the Oklahoma law said, in a nutshell, is that I can sell any meat and label it "Halal" because no court in Oklahoma would be allowed to determine whether or not the meat was Halal by ANY standard at all.

[Nuclear Unicorn]

10. "There are no "sharia courts", okay."

Actually, I think we agree more than you may suspect. I'm agreeing with the exact point I've quoted, which is why the OK law strikes me as so pointless -- as well as bigoted. Strip away its overt bigotry and it's still very, very, very pointless because, as you correctly noted, there are no Sharia-based courts in the US.

The "sharia-courts" I was referring to are the bogeymen imagined by those who proposed and codified the amendment in discussion. I never intended to give the impression this was a statement advanced by you. You have never made such a statement. If I gave that impression I should have been clearer and I apologize for the miscommunication on my part.

I will confess that I do not know the OK amendment verbatim but it would be extra-offensive if sharia advisors were prohibited from certifying halal foods in the same manner as rabbinic groups certify kosher foods. That would not be equal treatment. I don't know if that is part of the amendment or a mischaracterization but if factual it makes an already bad story worse.

[jberryhill]

13. Your last paragraph is correct

That is exactly what the OK law did. It prevented any OK court from premising any decision on a determination under Sharia law.

The really BIG consequence would be that observant Muslims in Oklahoma would have a really hard time buying houses because "Sharia mortgage" contracts would have become unenforceable.

(long story short, there is a financial structure called a "Sharia mortgage" which accomplishes the same result as a regular mortgage, but is structure in such a way that there is not an "interest" component of a "loan", as Sharia does not permit charging interest on lending money. A lot of banks offer these vehicles now, but this OK law would have created uncertainty in the enforceability of sharia mortgage contracts. So there really is a substantial component of economic discrimination to it.)

[ddeclue]

5. So Sharia law is illegal but Rabbinic law and Canon law are just fine?

An obvious case of religious discrimination.

[Nuclear Unicorn]

7. Nope. The Pope and rabbinic councils cannot impose fines, imprison, etc.

And some of the loonier examples I've heard of are "Patriot courts" that seek to skirt US civil authority based on what the people at "The Compound" think the US constitution should mean.

[ddeclue]

9. actually these religious courts have more power than you think..

and it is simply discriminatory to single out one religion and say: they can but not you.

[jberryhill]

11. Yes, they can impose fines

And determine employment.

Example 1

You and I agree to a contract to perform a magic ceremony for the Church of Crazy Magic. In our contract, we state "Liquidated damages in the amount of $100,000 for claims of breach will be submitted to arbitration to by the Council of Crazy Magicians that the ceremony was not properly performed".

You mess up the magic ceremony and the Council of Crazy Magicians rules that you owe me $100,000.

If you don't pay me, then I can have that arbitration decision by the Council of Crazy Magicians enforced by any state or federal court (if we are in different states).

Happens. All. The. Time.

Example 2

I hire you to teach at my Academy of Leaping Wizards, a religious school of wizardry. As a condition of your employment, you must remain a Wizard in good standing as determined by the Coven of Leaping Wizards. You work for me for five years, and I suspect you have ceased being a wizard in good standing. I take you before the Coven and they find you to be apostate. I fire you.

You bring a wrongful termination action against me in state court. The state court is going to uphold the finding of the Coven of Leaping Wizards, because you agreed they would be the arbiter of a claim that was a condition of your employment contract at the Academy.

Again.... Happens. All. The. Time.

[trof]

12. Mush ado about nothing.

I mean...SERIOUSLY?
jeez

[ProudToBeBlueInRhody]

14. I'm so confused I went cross-eyed.