Posted on 03/19/2011 9:15:41 AM PDT by tutstar
What was that Hamas-linked CAIR and other Islamic supremacist groups were saying about how it was utterly fanciful that Sharia would ever be used to judge cases in American courts?
(Excerpt) Read more at jihadwatch.org ...
Outrageous! The judge has sworn to uphold and protect American law. Recall, Fl freepers!
So what if a federal law was adopted outlawing the use of arbitration based on religious law?
Then you'd outlaw arbitration based on religious law. Of course, you have to ask yourself, what are the unintended consequences of that. You would, for a variety of industries, make it harder for US companies to do business with some foreign companies.
With near double-digit unemployment, the last thing we need to do is erect more barriers to commerce and trade.
Do you believe that such a law would be a violation of the Free Exercise Clause?
That's a good question. I think if you isolated a specific religious law - like Sharia - it probably would not survive judicial review. I would be confident such a law would be struck unanimously by the Court.
In fact, there's a case (on an Oklahoma statute, I believe) that is working it's way through the federal judiciary. That law has already ruled unconstitutional by the district court, and enjoined. The Circuit Court refused to stay that ruling. It's unlikely that law (it may have been an actual amendment to the state constitution) will survive.
I think it's possible that a more general law, prohibiting the application of any religious canon law in arbitration, has a better chance of surviving judicial review, but it would be far from certain that it would survive.
Places in the US where contracts among Orthodox Jews use the Torah as the law would be very unhappy about abolishing the free exercise of their religion.
I agree, which is exactly why I think we should leave things as they are.
And the 613 Commandments are not?
Y’know that the famous 10 are just extractions from the 613?
‘All it took for the muzzies_________’
Man, I am with you.
All day every day: Islam this and Islam that.
Special privileges, ‘trial runs’ on airlines and at airports, covered faces on licenses, etc. etc.
I’m sick of it.
Just go away.
Knock down 2 buildings with 3,000 inhabitants - quite a few from other countries, not solely Americans, - hitting the Pentagon, and the heroes who went down in PA.
And remember they said they are not here to be equal to any other faiths, but to dominate.
And the Koran shall be the only Holy Book.
Also said they won’t need to do violence here to dominate - the intention is to ‘educate.’
So part of that is we now have text books with outrageous encouragement to students and teachers to do ‘the Islamic thing.’
Highly irritating.
Some of us are so preoccupied in trying to keep America the way it used to be before 9-11 - warts and all - for our children and their children, but see too many American citizens thinking whatever Islam is and wants is just fine with them. (And not thinking at all - - - )
Shudder. . . .
W A K E U P A M E R I C A
Your facts are confusing the soundbyte crowd here. There is a startling tendancy for people to base their entire political ideology on soundbytes and bumper sticker slogans without any attempt to apply reason or complex thought.
In Sharia Law chopping off a hand is perfectly fine. So if the parties are agreeing to Sharia Law in there contract then theoretically chopping off of a hand would be perfectly binding. Sharia/Islam is not something you want to give a single inch of breathing room EVER!
Did you even read the post that you were responding to? No, you cannot contract to "chop someone's hand off". That would be an illegal (criminal) act. In the US, even in private binding arbitration where the contract eforces a non-US choice of law, that contract/arbitration cannot stipulate an illegal act, or an act that breaches public policy.
"Sharia/Islam is not something you want to give a single inch of breathing room EVER!"
Have you missed all the posts on this thread about the other religious laws that are applied in private contracts? It is a profoundly common occurence. Moreover, the law cannot single out a particular religion for exclusion. If the law is going to recognize some religious law in private contracts, then because of 1A considerations, it must recognize all religious law. Such a law has already been struck by a district court in Oklahoma, and that decision was not stayed pending appeal. That should tell you something.
This business about "sharia law in US courts" is farcical and beyond unintelligent. Private contract law has been recognizing religious clauses under the choice of law doctrine for more than a century, with ABSOLUTELY NO EFFECT on American jurisprudence.
“This business about “sharia law in US courts” is farcical and beyond unintelligent. Private contract law has been recognizing religious clauses under the choice of law doctrine for more than a century, with ABSOLUTELY NO EFFECT on American jurisprudence.”
Did you read the order? It provides that the motion to confirm the arbitration award will be decided according to Islamic law. The court held that it will determine whether its interpretation of the Qur’an’s dispute resolution procedures were followed.
If parties contract for religious doctrine to govern their relationship, do you believe it is within our courts’ jurisdiction to review and interpret the applicable religious doctrine if one of them sues in court? Or, is the choice of law provision also a choice of venue clause, in the sense that the parties are forced to go before a religious tribunal or private arbitrator if they’ve chosen religious law to govern the contract?
Right, EXACTLY like was stipulated IN THE CONTRACT - a contract that was signed by both parties. The parties agreed to be bound by arbitration, arbitration in this instance that applied Sharia law. If one of the parties didn't want to be bound by arbitration, then they shouldn't have signed the contract, right?
This is an incredibly typical motion, where the winning plaintiff asks the court to enforce the order of the arbiter. The only thing that makes it "unusual" is the fact that it's a Sharia arbiter.
"The court held that it will determine whether its interpretation of the Qur’an’s dispute resolution procedures were followed."
Right, the court will determine if the agreed upon arbitration procedures were followed. It does not review the decision that the arbiter came to, hence the term binding arbitration.
"If parties contract for religious doctrine to govern their relationship, do you believe it is within our courts’ jurisdiction to review and interpret the applicable religious doctrine if one of them sues in court?"
It's irrelevant because that's not what happens in binding arbitration. That word "binding" means something. It means the decision of the arbiter is set-aside from judicial review. What is subject to judicial review is the arbitration procedure. In this instance, it just happens to be a religious court acting as arbiter.
"Or, is the choice of law provision also a choice of venue clause, in the sense that the parties are forced to go before a religious tribunal or private arbitrator if they’ve chosen religious law to govern the contract?"
The "venue" in this particular context is arbitration. The choice of law provision (in this context) addresses the law that the arbiter applies.
However, I would point out that it's conceivable that some religious-based choice of law provisions are applied in a secular court of law. Usually, these applications happen in the context of divorce decrees or probate court. A last will & testament might stipulate that the decedent's assets are distributed to heirs using a religious law doctrine. The probate judge will then follow that doctrine when dividing and distributing assets. This is incredibly common in NY amongst all the varying orthodox Jewish sects. It happens literally every day.
Keep in mind, these are all civil law law applications, almost always as those laws relate to contracts, or wills. Sharia or Jewish laws, and foreign laws are not applicable or relevant to our state or federal criminal laws in any way.
Isn’t it the case, though, that motions to confirm arbitration awards are generally decided according to the Federal Arbitration Act, or according to the state law of the forum? Why would it be appropriate for the court to eschew those laws and decide the motion to confirm according to Islamic law instead? Even if the contract said that the confirmation of any resulting award was to be determined according to Islamic law, how does the court have jurisdiction to review, interpret and apply religious doctrine? Supreme Court precedent says courts have no jurisdiction to resolve issues of religious doctrine. And, parties cannot, by contract or otherwise, confer subject matter jurisdiction on the court.
And, that's exactly what happened here. The judge confirmed the order of the arbiter (the rules that the arbiter may use may differ from state standard because of the application of the choice of law doctrine).
"Why would it be appropriate for the court to eschew those laws and decide the motion to confirm according to Islamic law instead?"
This starts to get into some pretty esoteric legal theory (and some of the theory is still very unsettled or evolving law, so I'll try to answer generally because it's not my area of practice...)
The court didn't eschew those laws, it affirmed them. Those laws allow for contractees to include a choice of law provision in their contract. They did, willingly. It went to arbitration, per the terms of the contract, and the court enforced the decision of the arbitration. This is exactly what the court should have done provided that the designated arbiter followed his/their arbitration procedures, and the contract wasn't entered under duress or coercion. These are the matters of fact, and principles of law that would have been reviewable by the court under the Federal Arbitration Act.
"Supreme Court precedent says courts have no jurisdiction to resolve issues of religious doctrine. And, parties cannot, by contract or otherwise, confer subject matter jurisdiction on the court."
Right, in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969), the central legal holding was that the 1A "bars the state from passing judgment in theological matters when judging property disputes involving religious organizations."
This is the primary reason that contractees then choose to select an arbitration forum to resolve these theological based disputes. The arbiter isn't similarly constrained by Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969), But even with the afformention Court case, lower courts have carved out some limited exceptions, that have so far not been reversed on appeal. One lower courts has held...
“[A] court can invoke a secular interpretation of church deeds, by-laws and canons, thereby avoiding judicial entanglement in issues of religious doctrine, polity and practice. When the application of this standard requires judicial involvement in a [religious] doctrinal question, however, it may not be relied upon.” “[P]rovisions in deeds or in denomination’s constitution for the reversion of local church property to the general church, if conditioned upon a finding of departure from doctrine, could not be civilly enforced [quoting and endorsing a concurring opinion in a different Supreme Court case].
This will probably all be resolved sometime in the future when the Court hears some of these cases stemming from the Anglican and Episcopal churches that are being brought by members who wish to take their local parish, and withdraw from the larger church because the larger church is ordaining homosexual priests and whatnot.
Will the Court allow these local parishes to violate their contracts on somekind of theological basis? I don't know. It should be interesting to watch it play out.
I’m worried about allowed Sharia-based arbitration. Imagine a woman in a Muslim community under such arbitration, and she’s being screwed due to misogynistic Sharia implementation, and wants to go to the courts to get a fair deal as is the right of any American citizen. Sorry, she’s stuck with Sharia.
These arbitration cases don't operate in a legal vacuum. Arbitration, even with a Sharia-based arbiter, cannot be in violation of US public policy. It gets complicated, and I really don't have time to get into it, but there have already been cases (based primarily on Jewish contracts) that arbitration awards have been undone because they've violated protections against sexual discrimination in US law. Jewish law, like Sharia law, also has elements that can be fairly unfriendly to women, as well.
Not cool.
This is not a good sign.
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