January 17, 2012
Tolerating the Intolerable
On January 10th, a panel of the 10th Circus Court of Appeals refused to lift a district-court injunction against certifying an Oklahoma initiative constitutional amendment that received 70% support from voters. The initiative would ban the use of international law and sharia law in Oklahoma courts, but the 10th Circuit held that it violated the Establishment clause of the United States Constitution:
A proposed constitutional amendment that would ban Oklahoma courts from considering international or Islamic law discriminates against religions, and a Muslim community leader has the right to challenge its constitutionality, a federal appeals court said Tuesday.
The court in Denver upheld U.S. District Judge Vicki Miles-LaGrange's order blocking implementation of the amendment shortly after it was approved by 70 percent of Oklahoma voters in November 2010.
Muneer Awad, the executive director of the Council on American-Islamic Relations [CAIR] in Oklahoma, sued to block the law from taking effect, arguing that the Save Our State Amendment violated his First Amendment rights.
"This is an important reminder that the Constitution is the last line of defense against a rising tide of anti-Muslim bigotry in our society, and we are pleased that the appeals court recognized that fact," Awad said. "We are also hopeful that this decision serves as a reminder to politicians wishing to score political points through fear-mongering and bigotry. "The amendment read, in part: "The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law."
Sidebar by Dafydd: What the circus court actually ruled on was whether the trial judge, Vicki Miles-LaGrange (nominated by Clinton and confirmed before the 1994 Republican landslide), "abused [her] discretion when [she] granted a preliminary injunction to prevent [the Oklahoma State Election Board] from certifying the result." They did not rule on the merits of the underlying case.
Ne'ertheless, the appellate court's ruling itself was based upon a shocking category error: The court mistook use of a binding judicial system for religious worship.
The Oklahome initiative bans a particular and well-recognized system for trying legal cases, which many Islamic countries have adopted. But the judges on the Tenth-Circuit panel -- Terrence L. O'Brien (appointed by George W. Bush), Monroe G. McKay (Jimmy Carter), and Scott Milne Matheson, Jr. (Barack H. Obama) -- inexplicably imagined that preventing binding use of that judicial system, utterly antithetical to the American judicial systems, was the same as preventing Awad from practicing Islam. From the opinion, page 18, and emphasis added:
In this case, the Oklahoma Legislature did not simply adopt a non-binding resolution opposing the consideration or use of Sharia law in state courts, it proposed and the electorate agreed to enshrine such a prohibition in the state’s constitution. Mr. Awad is facing the consequences of a statewide election approving a constitutional measure that would disfavor his religion relative to others.
The panel's confusion is dumbfounding. Mr. Awad is not complaining that he cannot practice Islam; he is complaining that he won't be able to force a bunch of other people to effectively practice his form of Islam, willy nilly, whether they want to or not. For that is what will happen if some jurisdiction of Oklahoma chooses to sanction a sharia court: Even Moslems who don't want to submit to a council of mullahs (a college co-ed who wants to date, for example) will either be forced by law to kow-tow to Islam, or will at the very least come under tremendous, state-sanctioned pressure to "voluntarily" submit to the religion whose very name means "submission."
By banning such sharia courts, Oklahomans want to prevent such discrimination against Moslems who prefer to live under liberty and rule of law rather than theocracy and rule by religious fanatics.
But let's take it out of the hot-button controversy of radical Islamism. Imagine instead a "spiritualism court" that springs up within a number of Eurozone countries, a court that uses a witches' brew of bibliomancy plus the testimony of dead people, via spirit medium, to adjudicate disputes, find living people guilty or innocent of a crime, and to determine negligence in a civil case.
If that form of jurisprudence were banned in Oklahoma, would that truly violate the Establishment clause? To quote Mr. Bumble, "If the law supposes that, the law is a ass -- a idiot."
No, of course not. Believers in spiritualism could still pretend to communicate with ghosts and could still decide life events by blindly opening the Bible and putting their fingers down at a random verse, which they could still interpret to mean they get to do whatever they wanted to do in the first place. What such a law would prevent, however, is dragging other people, non-believers in spiritualism, into that bizarre alternate world against their will. And that is all that the Oklahoma initiate does.
Mr. Awad has no constitutional right to have his cases heard in a sharia court, anymore than he has a constitutional right to have them heard in a spiritualism court; nor has he the right to live under a different set of laws than everybody else. It's an absurdity to suggest that requiring every citizen of Oklahoma to live under the same jurisprudence somehow violates people's freedom of religion -- unless you're also prepared to argue that modern-day Aztecs should be allowed to murder people because human sacrifice is part of their religion, and to prevent them from doing so violates the Establishment clause of the U.S. Constitution.
This panel is both a ass and a idiot; the injunction should have been lifted because Muneer Awad has no standing; he has no standing because he is not "injured" by this initiative; and he is not injured because he has no right to demand he be tried by a court whose practices are utterly foreign to American jurisprudence, for cripes' sake.
We now return you to your regularly scheduled blogpost by Sachi.
I don’t see how it can be considered unequal treatment, or even "anti-Muslim bigotry," for all Oklahomans to be governed by the same state and federal constitutions, the same law, and the same court procedures. This amendment does not prohibit practicing the "religion of peace" [actually, the religion of submission -- DaH]. So why would this violate anyone's rights, Moslem or otherwise?
True, the amendment mentions Sharia law in couple of places. I don't necessarily buy the supporters explanation that Sharia was used merely as an example; I am sure whoever proposed the amendment had the real threat of Sharia law in mind. I certainly hope he did!
But as long as the operative parts of the law do not single out Sharia -- for example, banning Sharia law in the Oklahoma courts while allowing, say, Catholic canon law or Jewish Talmudic law; and so long as the law bans all international, religious, tribal, or traditional laws that are not a part of American and Oklahoman jurisprudence (as it looks like it does), I don't see why that should be considered discriminatory or unequal protection.
Maybe it takes a lawyer to believe such a thing.
Awad argued that the ban on Islamic law would likely affect every aspect of his life as well as the execution of his will after his death. The appeals court pointed out that Awad made a "strong showing" of potential harm.
What aspect of Mr. Awad's life does this amendment affect so negatively? I am sure this amendment does not prohibit him from washing his feet before prayer, or pressing his forehead to a prayer rug five times a day. It does not prohibit his female family members from wearing burkas, unless the girls want to join JROTC -- wait, scratch that. So what upsets Awad so?
But perhaps he has other concerns. Is he discriminated against when the law prevents a future Oklahoma sharia court from allowing a Moslem father to kill a daughter who kisses a boy at school? Perhaps it's unequal protection under the law when devout radical Islamists are disallowed, despite sharia, from mutilating their toddler-daughter’s genitals. Or maybe Awad is concerned that his fellow CAIR-mates cannot practice their religion -- if their religion tells them to beat the living daylights out of a son for refusing to kill Mom, should Mom ever dare file for divorce against a violent Islamic husband?
Perhaps Mr.Awad demands only the right to stone to death some woman who was just gang raped, or a gay man who was caught in the act, or a female Christian or Jew who happened to wander into the sharia-ruled neighborhood without being veiled and swaddled and in the tow of a male relative. Awad is a reasonable man; he doesn't demand everyone become a Moslem... they can simply pay the dhimmi tax instead.
Yes, those quaint customs and laws enunciated by sharia courts around the world would certainly conflict with American-style jurisprudence. If banning sharia law would actually affect American Moslems’ lives in these ways -- and I hope it would! -- I am extremely glad that our federal Constitution and the Oklahoma state constitution are "discriminatory" against such savagery, bigotry, and anachronistic brutality.
Much of sharia law, Roman law, the Napoleonic Code, Talmudic law, the Code of Hammurabi, the Code Duello, and indeed contemporary, so-called "international law," is completely at odds with Americanism and the vision of the Founders, which we the people accept as our source of law, common law, and court procedures. And if Mr. Awad would like to live under such alternative codes, then perhaps he could move to any of a number of Islamist countries who will cheerfully accommodate his wishes.
But don’t force the rest of us to live under it.
What really upsets me is the hypocrisy of the appeals court. They say that "Awad made a 'strong Showing' of potential harm". But, Sharia law itself makes a strong showing of actually harming Moslems, especially Moslem women. If the state institutes sharia sectors within its territory, or allows mosques or Islamist madrasah to implement them, it will expand like a cancer until all Moslems in the state will be required or heavily pressured to live under sharia law; and that assuredly is discriminating (horrifically) against Moslems.
What happens to a woman who wants to marry a non-Moslem man, stay single and pursue a career, divorce her husband, or who is assaulted by her brother or father? The judges of the circuit court in Denver, as well as trial Judge Vicki Miles-LaGrange (who issued the injunction against certifying the initiative), ruled that Moslem women need not be protected under the same law as other Americans. Again, only a lawyer could consider that to be constitutional.
Mr. Awad’s lawsuit reveals CAIR’s real intention: No matter what they say, their ultimate goal is to implement sharia throughout the United States, throughout the West, and ultimately throughout the entire world. CAIR fights through trickery, through "lawfare," through regulation and friendly legislation, and through our wackiest liberal judges. (This is collectively called Dawa, which is all elements of jihad short of full-scale war.)
The case now returns to federal court in Oklahoma City to determine the constitutionality of the proposed amendment. “My office will continue to defend the state in this matter and proceed with the merits of the case,” Oklahoma Attorney General Scott Pruitt said in a statement.
CAIR pretends Oklahomans' decision was an overreaction caused by unfounded "Islamophobia." However, we Americans, including the 70% of Oklahomans who voted for the amendment, know how incredibly dangerous Moslem extremists are. We all saw the devastation of 9/11 and the subsequent 10-Years War in Iraq and Afganistan.
But Moslems in the US are not and never were rounded up, segregated, forced to live under discriminatory "Jamal Crow" laws, or herded into concentration camps. Rather, Americans believe everyone in a jurisdiction should live under the same laws, not that bellicose pressure groups should get to live under their own private laws. That is the real equality of rights under the law and the real America that 70% of Oklahomans voted for, the America that no activist judge will be allowed to take away from us.
Hatched by Sachi on this day, January 17, 2012, at the time of 8:34 PM
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