Thursday, August 25, 2011

Equal Justice For Some

Our oh-so-civilized British friends are allowing sharia law to creep into their daily jurisprudence. Recent United States Supreme Court decisions have cited foreign law, and several states have already taken action to prevent foreign law, including sharia law, from being cited in the state courts. The State of Michigan is now considering such legislation, following in the footsteps in twenty other states.

This action should turn out to be the most interesting so far, since Michigan has the largest Muslim community of any state. The movement has loosely been called "American Laws for American Courts," and the legislation in each state follows that concept, though there are minor differences in the wording of the statutes from state to state. The Michigan bill, so far stuck in committee, was proposed by state Representative Dave Agema (R-Grandville). The cries of racism, Islamophobia and xenophobia began even before the bill was introduced.

Agema insists that the proposed law is designed to fend off local imposition of foreign law in general, and is not specifically designed to prevent the imposition of sharia law. I will take him at his word, but I also have to think that he is not seriously worried about the imposition of French food purity laws or German highway standards on the citizens of Michigan. Regardless of his motives, he is clearly taking the stand that Michigan law must be equally enforced upon all citizens of Michigan, and that any other law is in conflict with the fundamental rights and obligations of the sovereign State of Michigan. That concept of uniform and equal treatment under the law is as old as the Republic itself.

But don't count on Michigan Republicans to rally behind Agema. Republican Victor Begg, who is coincidentally a senior adviser to the Council of Islamic Organizations of Michigan, says the proposed legislation is hogwash and that its sole agenda is to thwart sharia law. He calls it a witch hunt with Muslim-Americans as the real target. I don't want to be the bearer of bad news, but there are no witches, and the targets are those who would harm the fundamental American concept of equal justice under law.

Joining Begg in his hysterical attempt to prevent "victimization" of minorities who wish to live under law different from that of their fellow citizens are the Council of American-Islamic Relations (CAIR, unindicted co-conspirator in the Holy Land Foundation terrorist funding), the NAACP and the ACLU. As Claude Rains would say, "all the usual suspects." Supporters of the bill have listed court decisions in several other states which applied international, foreign or sharia law in cases which should have been decided solely on state, federal and constitutional law.

The Center for Security Policy, a Washington DC think tank, has looked at fifty appellate cases from twenty-three states and determined that sharia law had been applied or recognized as precedent in each of the cases. The legal arena called "conflict of laws" has until very recently been concerned solely with reconciling conflicting state statutes and law, or state law which conflicts with federal law. Only in the last few years has any consideration whatsoever been given to reconciling foreign or sharia law, other than those laws implementing treaty obligations.

Proponents of the legislation argue rightfully that the statute is designed to protect constitutional liberties, not designed to go after anyone's religious practices. That doesn't mean that occasionally religious practices may not violate state or federal law directly. So long as there is no "impermissible meddling in the practice of religion," the Supreme Court has consistently held that even direct prohibition of certain religious practices which are impermissible for those not of that faith are valid. Mormons gave up polygamy in order to have Utah become a member of the community of States. Muslims apparently expect different treatment.

Saced Khan, a university lecturer on Islamic history, has pulled out all the traditional "victim" tropes. "While Hispanics, blacks and gays have gained a certain amount of political and social capital over the years, the relatively small Muslim community is an easy target." This from a man who has on other occasions pointed out how a "substantial Muslim minority" has been ignored by Michigan society in a nation which has a President who has declared America to be one of the largest Muslim nations on earth. The Muslims are either a small oppressed minority, or a large important minority, depending on the day of the week and the audience being addressed.

In addition, Khan says: "The [Muslim] community has thought that because of its longevity in Michigan, the fact that it has been such a productive and integrated part of the greater society, that for this attack to occur, for it to be targeted in such a particularly (sic) way, it's a false issue in that none of the community members have ever tried to assert the codification of sharia within the legal system. The community recognizes that many of the principles of sharia are already addressed or accommodated in state and federal law (emphasis added)."

Aside from being a tad incoherent, that statement needs to be vetted for its inconsistencies. First, "longevity" implies "legitimacy" only in the minds of sharia proponents and illegal immigrant amnesty boosters. Then contrast "none have ever tried to assert sharia" with "already addressed in state and federal law." You can't have it both ways. And of course this is all a smokescreen to cover up the fact that the legislation is designed to address precisely the early stage imposition of sharia law in the courts.

I can envision cases in which Muslim beliefs would be the final determining factor in a legal matter without violating the proposed statute. For instance, take a child custody dispute between two Muslims. After the state law has been satisfied in all its particulars determining custody, including the overriding rule of the "best interests of the child," the next stage could be determined entirely using Muslim principles without offending state or federal law. Suppose that all things being equal, a Muslim religious organization to which both parties had submitted determined that sharia law requires that the father get the child.

The state law already having determined that either parent would be acceptable, and that there is no danger to the child based on which parent is granted custody. then the agreement of the parties to accept the decision of the religious body becomes the determining factor. In other words, the custody is granted based on state law, the agreement of the parties, and only incidentally on Muslim belief and sharia. Had the Muslim belief violated state law, or sharia law been cited as the sole reason for the custody decision, then the proposed law would indeed have been violated.

The same logic could be applied to a Catholic divorce. All things being equal, and the parties having agreed in advance to have custody be determined by an ecclesiastical court after compliance with all state statutes and rules, the Church body would be the final determiner of custody. But if you want to talk about state interference in religion, don't the Catholics actually have a better argument than the Muslims? Catholic doctrine forbids divorce in the first place, yet Catholics recognize that despite their religious beliefs, divorce is a matter for state legislation, and they know they must accept it.

And finally to counter Khan's false "victim" comparisons, there is no black law, there is no gay law, and there is no Hispanic law which can ever be cited to alter or contradict the rules of state law. Once a state has taken valid and constitutional authority over a given area of law, it applies to every citizen of that state, regardless of religious belief. That is the legal/constitutional balancing act which must be done when religious belief becomes religious excess. The government may not excessively interfere with religious practice, but that door swings both ways.


23 comments:

rlaWTX said...

I honestly can not understand why this is an issue. I do not get how people can really want the precedent set of using foreign law OR how having the law of the state or nation equally applied to everyone is wrong. This whole thing is just outside my ability to comprehend.

T-Rav said...

Uh, yeah. You know who's a real "target," Khan? Oh, I don't know--seems like gays under Muslim law would be, but I'm just speculatin'.

rlaWTX said...

also, doesn't there seem to be that good old soft bigotry of low expectations involved in the libs that defend this nonsense: "while I wouldn't want to be judged by sharia, if these nice folks want to be placed under that repressive legal standard then who am I to stand in their lil ole way?"

LawHawkRFD said...

rlaWTX: That's because you think like an American. The left thinks in terms of "one world," and utopian world government, not realizing for a second that most of those international views cannot be reconciled with each other until one has dominated all the others (and Islam is struggling mightily to do exactly that).

Add to that leftist thinking the liberal concept of a "living Constitution" and you have the idea of incorporating foreign law because some of it is "more modern" or "more progressive" than the Constitution. That crazy agenda permeates the entire Democratic Party and has wormed its way into courts all over the country. States frequently cite cases from other states. But that's not the same as citing cases from foreign jurisdictions.

State courts may vary in their interpretations of law, or even think that another state's law is better-reasoned than their own, but no matter what, all state law must still be in compliance with the mandates and prohibitions of the US Constitution. Foreign law has no such boundaries.

LawHawkRFD said...

T-Rav: Don't try to confuse them with the fact. LOL

LawHawkRFD said...

rlaWTX: I don't think it's the low expectations so much as it is this crazy notion that all legal systems are equal, and that therefore those who come from a different legal system should be judged by that system rather than the law of the jurisdiction in which they live. "It's a cultural thing" becomes a license for aberrant and even murderous behavior.

T-Rav said...

rla, I really don't know what you're complaining about. Wouldn't you find it more liberating to not have to worry about these decadent Western habits women take part in, like driving, exposing a single square inch of your skin, having fingernails, and so on?

LawHawkRFD said...

T-Rav: And let's not forget the joys of female circumcision and regular beatings by their husbands. How can a woman know she's loved unless she has been subjected to that? No husbandly indifference that Western women suffer daily.

rlaWTX said...

thanks, T-Rav, but no thanks. I am not a modern feminist by any means, but that's a bit more - um - protection than I'd like to deal with...

This is such a stupid discussion IMHO, and so antithetical to the very conception of the USA. And, as in the case of those "concerned" with Bush theocracy, another example of myopic double standards.

And my opinions about "equality of culture" are very un-PC... While I agree that we haven't always been as considerate of others' cultures as we should have been, not all cultures are created equally. Period. Some are BAD. Marrying 14yo girls off to old guys is wrong - whether it's being done by Muslims or by Jeffs's hicks.

AndrewPrice said...

Sharia law stinks and it should not be recognized in the US or anywhere else frankly.

LawHawkRFD said...

rlaWTX: More importantly, Bush never once suggested, hinted at, or murmured that ecclesiastical law should be applied anywhere in the United States. The vast majority of Americans want their religion in church and their daily lives, but don't wish to force it on anyone else, let alone demand special courts for Christians. The whole thing is appalling.

LawHawkRFD said...

Andrew: See what I mean? You don't understand. You're a Eurocentrist who refuses to admit that sharia is the law of the future. All groups are equal, but some are more equal than others.

rlaWTX said...

yeah, what Andrew said...

LawHawkRFD said...

rlaWTX: Infidel! You will be dealt with.

T-Rav said...

Actually, I think that makes you guys Orientalists. You are imposing on Muslim culture your own prejudices and not allowing them to represent themselves, and thus frustrating them and causing them to be violent. So really, it's all your fault.

LawHawkRFD said...

T-Rav: My son was in the middle of all that Orientalist, Edward Said crap at UCLA during the first Iraq War. Fortunately, he inherited his father's skeptical genes, and didn't buy into most of the nonsense. Far too many did.

Euripides said...

This is precisely the problem that identity politics raises - the concept that some groups are more equal than others - to the exclusion and detriment to the system that created the freedom in the first place. This is also the stuff from which revolutions arise.

Koshcat said...

What I find baffeling is that some of the same idiots who support their "right" to sharia law would be the first to be brutally prosecuted under it. There is being libertarian about things and then there is just stupidity. I, and probably most of the people here, would most likely survive under sharia law. Look what the taliban did to the "progressive women" during their rule.

Sick, disturbing and wrong. It shouldn't even be a debate.

Patti said...

if sharia law stands in the US, we all become victims, including muslims.

and if gays thought that middle america was a hard sell for their lifestyle....

LawHawkRFD said...

Euripedes: Identity politics is another way of dividing people from each other and thwarting the purposes of constitutional equal justice among all individuals. When you have no individual identity you have no individual responsibility. And that's just what the liberals want. But the liberals cleverly turn that argument on its head when an Islamoterrorist gets caught: "You can't blame a whole group for the acts of one individual." It's a win-win argument for those who can't think and analyze, as well as perfect double-think for the left. In the liberal world, you can have it both ways.

LawHawkRFD said...

Koshcat: As Stalin called them, "useful idiots."

Tennessee Jed said...

This is clearly being played as a political issue. While I don't like that, I will say it probably plays in favor of Republicans, although I'm amazed at cheezers like Begg.

It seems obvious to me that any codification of Sharia violates separation of church and state. It may be one's religious to carry out jihad by flying planes into buildings. As you point out, courts have kept an eye to make sure laws don't indiscriminantly meddle in religious practice.

The point is, Muslims may practice Sharia law except where it contradicts our laws. Further, Sharia law has no legal standing. As far as our courts should be concerned, there would be no such thing, and it would carry the same legal weight as say, not eating fish on Friday or not eating beef for Hindus.

Nice to be back.

LawHawkRFD said...

Tennessee: Welcome back, we miss your input when you're away. That is precisely the issue these statutes address. We know that the courts and the politicians have stretched the Constitution to the breaking point on all kids of issues. Sharia law has actually been allowed in certain Muslim enclaves in England, and the proposed legislation here is to avoid that same tolerance, then sympathy, and finally acceptance of sharia law, all in the name of diversity. When it comes to people being allowed to use any law other than that passed by the state or the people of the state under constitutional principles, diversity can kiss my Lutheran butt.

Good Muslims can maintain halal just as devout jews keep kosher. Those religious "legal" observances do not in any way demean the civil law by which we all live.

But unlike Mosaic/kosher observance by the Jews, Muslims have succeeded in advocating that sharia law should actually replace civil law in Muslim areas of America. Horse manure! They can live with our civil law, or they can return to their caves and sand dunes and be free sharia primitives elsewhere.

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