10th Circuit Blocks Oklahoma’s “Shariah Ban”
The U.S. Court of Appeals for the 10th Circuit ruled today in Awad v. Ziriax et al, blocking a proposed constitutional amendment that would forbid domestic courts from considering or using international law. The more controversial aspect of the amendment is that it would also ban courts from using or considering Shari’ah law.
The Appeals court upheld the decision of The Western District Court of Oklahoma on November 29, 2010 to grant a preliminary injunction blocking the amendment, and stated,
Appellants argue there is no discrimination because the amendment bans all religious laws from Oklahoma courts and Sharia law is named only as an example. But that argument conflicts with the amendment’s plain language, which mentions Sharia law in two places…
The amendment bans only one form of religious law—Sharia law. Even if we accept Appellants’ argument that we should interpret “cultures” to include “religions,” the text does not ban all religious laws. The word “other” in the amendment modifies both “nations” and “cultures.” Therefore, if we substituted the word “religions” for “cultures,” the amendment would prohibit Oklahoma courts from “look[ing] to the legal precepts of other . . . religions.” The word “other” implies that whatever religions the legislature considered to be part of domestic or Oklahoma culture would not have their legal precepts prohibited from consideration, while all others would. Thus, the second portion of the amendment that mentions Sharia law also discriminates among religions.
The court also commented on the lack of compelling state interest by the appellants,
Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma…
The proposed amendment goes further than preventing courts from “applying” Sharia law. The amendment forbids state courts from “considering” those laws. See Aplt. App. Vol. 1 at 168. Even if the state could identify and support a reason to single out and restrict Sharia law in its courts, the amendment’s complete ban of Sharia law is hardly an exercise of narrow tailoring. Appellants have not carried their burden to show why the proposed amendment is “closely fitted” to a compelling interest.
Finally, the court commented on the role of the judiciary in the democratic process,
Federal courts should be wary of interfering with the voting process, but we agree with the district court and the Sixth Circuit that “‘it is always in the public interest to prevent the violation of a party’s constitutional rights.’” Awad, 754 F. Supp. 2d at 1308 (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). “While the public has an interest in the will of the voters being carried out . . . the public has a more profound and long-term interest in upholding an individual’s constitutional rights.” Id.; see also Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting “[t]he strong public interest in protecting First Amendment values”).
One may contrast the response of the Ontario government to a vigorous debate about the ability of parties to family arbitrations to choose Sharia law to govern the dispute. The Arbitration Act was amended to require that family arbitrations be conducted solely under Ontario or other Canadian law. No mention was made of religious law or any particular foreign law.
Given the emphasis over the past few decades in Canada on sexual equality and the appropriate protection of vulnerable parties and dependants, it seemed fair to restrict the arbitral resolution of family disputes to laws that the province could count on adhering to those values, without singling out any others as deficient for this purpose.
The Oklahoma law would seem to have banned enforcement of contracts that chose foreign law as the governing law of the contract. That seems more likley to harm than to help Oklahoma interests, since some foreign parties would probably refuse to do the deal at all in that case.
Clarity is a good thing…in law….in love…in wine…..and in life…..so lets have a little clarity.
This action in Oklahoma has nothing to do with “rights” or “religious freedom” or “tolerance” or any of the other distractions and politically correct sleight of hands.
It has, at its core, the fight against Sharia Law and, as Prime Minister Stephen Harper so rightly said, the advancement of islamism.
Let’s make a few notes starting with the players.
The “Awad” portion of this action/appeal is a man by the name of Muneer Awad. Muneer is the head of CAIR, Oklahoma (Council of American Islamic Relations) and the brother of the head of CAIR America, Nihad Awad.
CAIR is an organization that comes wrapped in the robes of religious entitlement and claims to have at its heart, the peaceful coexistence of muslims and non-muslims. Unfortunately for non-muslims that peaceful coexistence is solely dependent on their total capitulation in the face of both a Caliphate and Sharia Law.
CAIR leaders have openly stated that they are not here in North America to live in harmony but rather to become the singular dominant force in all aspects of life for all muslims and non-believers.
A few CAIR pointers:
-CAIR leaders tried and convicted of actively supporting terrorism with the result being deportation and incarceration.
-CAIR leaders and members tried and convicted of weapons and explosives charges as well as planning terrorist actions.
-CAIR leaders and the entirety of the organization identified as an indicted co-conspirator in the largest investigation and trial of terrorist supporters/money launderers, “The Holy Land Foundation Trial”
(Note: from that trial a captured document stated the following: “The process of settlement is a “Civilization-Jihadist Process” with all the means. The Ikhwan [Muslim Brotherhood] must understand that their work in America is a kind of grand Jihad in eliminating and destroying the Western civilization from within and “sabotaging” its miserable house by their hands and the hands of the believers so that it is eliminated and Allah’s religion is made victorious over all other religions”
-CAIR leaders and the entirety of the organization clearly stating their unequivocal support for and advocacy of Hamas and Hezbollah, both of which top Canada’s list of terrorist organizations.
-CAIR leaders directly tied to the Muslim Brotherhood and openly and actively supporting the commencement of a second Holocaust. (In fact the annihilation of all Jewry is in the foundational charter of both Hamas and Hezbollah)
This is truth, this is the reality of CAIR, who stands before the court and demands that we “by our own hands” provide them with all the protections and liberties afforded an organization or individual who wishes to be a part of a democratic country yet have utterly no intention of abiding, now or at any time in the future, by the dictates of a lawful, democratic society which values and holds sacred, human rights, freedom, rule of law, women’s rights, gay rights, freedom of speech, freedom of religion and many other freedoms.
Lets look at Sharia Law. There is no such thing as “Sharia Law Light”…the kinder, gentler lo-cal Sharia Law…..there is just Sharia Law.
Sharia Law is in fact, one of the most violent, oppressive and backward forms of jurisprudence on the face of the planet. To wit:
-Sharia Law demands the death penalty for gays.(Industrial cranes in the Middle East serve a dual purpose by hoisting loads and equipment on construction sites as well as serving as a hanging platform for gay men.
-Sharia Law demands the amputation of hands and feet for crimes.
-Sharia Law calls for the mutilation of female genitals.
-Sharia Law calls for the stoning of a woman.
-Sharia Law gives a woman’s legal testimony one half the weight of a man’s in a legal proceeding.
-Sharia Law demands that if a woman is raped she produce 4 male witnesses including one of those that must testify he actually saw the penetration. Should the woman fail to produce the witnesses she herself will be charged with adultery.
-Sharia Law allows a lesser penalty for men who kill their wives or children as a matter of “honour”. (Let us look to the Shafia women whose last moments were spent at the bottom of a canal for the crime of offending their father’s “Honour”)
-Sharia Law allows a man to divorce his wife by saying “I divorce you” 3 times. If they want to remarry the woman, according to Sharia Law, must marry another man, consummate the marriage, divorce the man and then remarry the original husband. In fact there are quite a few men who make a good living being “temporary” husbands.
-Sharia Law allows a married man to take another woman in a “temporary marriage” for times ranging from a couple of hours to a few days.
-Sharia Law dictates that in a divorce the custody of the children, almost always, are given to the father.
-Sharia Law dictates that in the event of a death, the woman, daughter, gets 1/4 of the estate with remainder going to the male heir.
I could go on but I won’t…you get the picture….Sharia Law is not about settling a dispute between fruit vendors….Sharia Law is a cornerstone in the push to Islamisize the West. Plain and simple.
Let us just say..or rather I will say…there could not be another ideology that is in such direct opposition to all we value here in the West. Many of the persons reading my words are women, called to the Bar, who never ever would have had that opportunity under Sharia Law.
In closing, the people of the state Oklahoma recognized this and voted overwhelming in favor, over 70 percent, of banning Sharia Law.
The appellate court has interfered in that will, that desire. There are many who view the courts actions as dangerously activist.
Now, I trust the picture is a little clearer.
The reality is that this skirmish is a symptom of a growing fight against islamism and Sharia Law…wrap it in whatever robes you will, drape it in pearls, douse it in perfume and take it dancing…..it is what it is…..a clash of cultures……let us recognize it as such as to obscure it in a fog of political correctness serves only to endanger the freedoms we and all our ancestors have fought so hard for, the freedoms for all, the freedoms we cherish.
Regards, Don Laird
Edson, Alberta, Canada
I fear that Mr Laird’s view mis-states both the nature of CAIR and many of the contents of ‘Sharia law’. I suggest to readers inclined to follow his conclusions to inform themselves from more reliable sources.
Islamic personal law varies from Muslim country to Muslim country, so there is no single ‘Sharia’ (which is not itself a legal term anyway). There are several schools of Islamic law in Sunni Islam and others in Shia Islam. For just one example, some Islamic countries permit polygamy to men, some do not. It is certainly false to say that Sharia law requires female genital mutilation (though it does require circumcision for men, I believe). Some Islamic countries practise it, unfortunately, but without prophetic justification. Nothing even hints that without the Oklahoma legislation, it would be done in Oklahoma.
Application of personal laws and religious laws can present difficult – and interesting – questions of conflicts of laws and human rights. Mr Laird’s contribution to these questions is not highly constructive, or well-informed.
Mr. Laird’s statements are in my mind also clearly defamatory, and certainly not supported by judicial statements on the subject.
Legal systems will always borrow from each other, and in fact already have.
Further to my comment of some months ago and with slight regard to the predictable reaction of some to the same I am quite pleased to add a brilliant piece of video from the Center For Security Policy.
This will give a tremendous amount of insight into the difference between a Western Common Law understanding of the tort of defamation as opposed to the Islamic understanding.
Briefly, under Islamic Shariah law, defamation, in all its forms, has nothing to do with truth or fair comment but rather the utterance or publication of that which a particular person finds unflattering. Truth is completely and utterly irrelevant. So, it follows that, if one were to call Clifford Olson a vicious, depraved mass murdering, psychotic child killer, it would be, in Mr. Olson’s opinion, slander, and under Islamic law, actionable.
This is a far cry from the fair and balanced approach Western jurisprudence brings to the forum of adjudication in settling issues surrounding the bruising of ego or the assassination of characters.
This said, The Organization of Islamic Cooperation, representing 56 Islamic countries and the Palestinian Authority, are now and have been for some decades, seeking an end run around the Charters and Constitutions of Western countries solely for the purpose of silencing all commentary and criticism of Islam, Muslims and issues of terrorism and the Grand Jihad as related to the same.
In the video link below can be found a very rational, coherent explanation as to exactly what the OIC ( Organization of Islamic Cooperation )has been attempting to do, in cooperation with the United Nations, by quietly ratifying treaties with Western countries that destroy protections afforded citizens of civilized democracies, protections such as the freedom of speech.
If you are a lawyer or a citizen who is gravely concerned about world events and the Islamic Spring (Arab Spring) you would do well to pour yourself a coffee and spend 60 minutes of your time watching the video below.
Its title is: The Organization of Islamic Cooperation and its Role in Enforcing Islamic Law and, as with the Islamic Spring and the incredible erosion of women’s and human rights already manifest in Egypt and Libya, it is very disturbing.
http://www.youtube.com/watch?v=Ey-TRpkUiPI
Regards, Don Laird
Edson, Alberta, Canada
Don,
I’ve watched the video you’ve posted here, and it’s pretty clear to me that Maj. Stephen Coughlin has a very flimsy and superficial understanding and treatment of the issues he discusses.
There are some resources I’ve posted here on Slaw previously which should clarify these concerns if you’re so interested.