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South Carolina Bill Would Nullify Islamic Law in State Courts
cns news ^ | 2/4/11 | Seanna Adcox, Associated Press

Posted on 02/04/2011 4:12:59 PM PST by Nachum

Columbia, S.C. (AP) - A South Carolina proposal would prevent the state's courts from enforcing foreign law, including Islamic Sharia law, though Muslim advocates say it could essentially ban religion from mundane matters such as weddings and even burials.

The bill makes no reference to a specific religion or country, though its sponsors acknowledge they worry about the ultraconservative tenets of Sharia law, or Islamic religious law. At least 13 states have introduced similar measures this year, according to the National Conference of State Legislatures.

Sen. Mike Fair, a Greenville Republican who is the bill's main sponsor, said there was a need to clarify that cultural customs or foreign laws don't trump U.S. laws. He pointed to a 1993 divorce case in Virginia, in which a court deemed a marriage legal based on Islamic tradition. That decision was overturned.

(Excerpt) Read more at cnsnews.com ...


TOPICS: News/Current Events; US: South Carolina
KEYWORDS: bill; carolina; islamic; south

1 posted on 02/04/2011 4:13:02 PM PST by Nachum
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To: nutmeg

bookmark


2 posted on 02/04/2011 4:13:43 PM PST by nutmeg (The 111th Congress: Worst. Congress. Ever.)
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To: Nachum

Carolina Akbar!


3 posted on 02/04/2011 4:17:17 PM PST by seton89 (Aequinimitas per ignorantiam)
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To: Nachum
A South Carolina proposal would prevent the state's courts from enforcing foreign law,

A ban on applying any "foreign law" is just nuts.

Example: a South Carolina company buys goods from a British company. The contract says that U.K. law governs. The South Carolina company doesn't pay, and the U.K. seller sues them in South Carolina. How can the court not apply the law selected in the contract?

Example 2: a South Carolina resident goes on vacation in Canada and gets into an auto accident. The injured Canadian driver sues the South Carolina driver in South Carolina court. How can the court not apply Canadian traffic laws in deciding which driver was at fault?

I could go on all day. The point being that, however well intentioned they are in trying to keep Sharia law out of the U.S. (certainly a good thing), drafting a ban on applying "any foreign law" is stupid.

4 posted on 02/04/2011 4:21:23 PM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Nachum
Apparently, South Carolina no longer wishes to business with the rest of the world. Interesting economic strategy. Not prudent. But interesting.
5 posted on 02/04/2011 4:30:10 PM PST by OldDeckHand
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To: upchuck

Ping


6 posted on 02/04/2011 4:30:10 PM PST by snippy_about_it (Looking for our Sam Adams)
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To: Nachum
"The backers of these discriminatory proposals realize if they put specific references to Sharia or Muslims, it won't pass constitutional muster," said Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, a Washington-based Muslim rights advocacy group.

Only because Islam is mistaken for a religion.

Islam will advance as long as the 1st Amendment is used to restrict Christianity.

7 posted on 02/04/2011 4:42:47 PM PST by Jacquerie (There is nothing like burning Christians alive to show you belong to the religion of peace.)
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To: All
Time for a Muslim Free America.
8 posted on 02/04/2011 5:01:57 PM PST by troy McClure
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To: troy McClure

Massive bump!


9 posted on 02/04/2011 5:04:29 PM PST by upchuck (When excerpting please use the entire 300 words we are allowed. No more one or two sentence posts!)
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To: snippy_about_it; 2A Patriot; 2nd amendment mama; 4everontheRight; 77Jimmy; ...
South Carolina
Ping

Send FReepmail to join or leave this list.

10 posted on 02/04/2011 5:05:39 PM PST by upchuck (When excerpting please use the entire 300 words we are allowed. No more one or two sentence posts!)
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To: Nachum
Notice how the media are equating the exploitation of women and children under sharia law as "ultrtaconservative"?

No true American conservatives any uses for such practices.

11 posted on 02/04/2011 5:13:59 PM PST by hoosierham (Waddaya mean Freedom isn't free ?;will you take a credit card?)
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To: hoosierham

You are right. The liberal left celebrates the abortion of both female and male children. That supercedes any type of exploitation.


12 posted on 02/04/2011 5:33:29 PM PST by doosee
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To: Nachum; Lurking Libertarian; OldDeckHand
Alright, this bill at least isn't as insane as the Arizona bill from last year. The South Carolina bill only prohibits the enforcement of foreign law "if it would violate a constitutionally guaranteed right of this State or of the United States." That actually seems like a good idea unless I'm missing something - if nothing else, it should at least help fight "libel tourism".

The Arizona bill barred enforcement or even consideration of foreign law in Arizona courts, whether constitutional rights were implicated or not. Furthermore, it provided that reliance on foreign law by an Arizona judge was "grounds for impeachment and removal from office." Fortunately, it never made it out of committee.
13 posted on 02/04/2011 5:37:12 PM PST by The Pack Knight (Laugh, and the world laughs with you. Weep, and the world laughs at you.)
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To: Nachum

Perhaps the wording needs some work — we’ll let you brilliant lawyers help us out with that. Here’s what I do know:

1. In South Carolina — State Law is the priority EXCEPT in the SPECIFIC cases where the Constitution of the United States gives authority to the Federal Government — and ONLY in those enumerated cases.

2. In NO CASE should “foreign law” take precedence over State law in the lives of the citizens of South Carolina with regard to criminal behavior. Example: Shari’a law regarding MARRIAGE (men can marriage little girls, or up to 4 females) IS NOT ALLOWED! “Honor killing” is not ACCEPTABLE!”

3. In the case of Contract law, foreign trade, etc., that has FAR more to do with FEDERAL law, treaties, etc. than with State law.

It appears there are fewer conflicts than critics claim. In any event, the conflicts CAN be sorted out to protect our STATE (and our NATION) from the evil that is Shari’a Law! And for that matter, our citizens ought not to be subject to any other nations laws on their own soil. Period.


14 posted on 02/04/2011 5:42:55 PM PST by patriot preacher
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To: nutmeg

How bout we have one law. Lets say we use the law of the U.S. and the constitution and we actually enforce it. Sorry, just being sentimental I guess. As a graduate of an esteemed SC institution of higher learning I do applaud the effort. Miss the oyster roasts and good folks there.


15 posted on 02/04/2011 6:59:16 PM PST by strongbow
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To: Lurking Libertarian
I can't imagine a citizen of a foreign country can sue a US citizen in a state court for an offense that was committed in a foreign jurisdiction. Perhaps it could be brought in federal court through the state department, but most likely it would be brought in the Canadian jurisdiction where the offense occurred and service of process would be made through the US state dept. Could be wrong but a really interesting what if.
16 posted on 02/04/2011 6:59:29 PM PST by PistolPaknMama
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To: patriot preacher
1. In South Carolina — State Law is the priority EXCEPT in the SPECIFIC cases where the Constitution of the United States gives authority to the Federal Government — and ONLY in those enumerated cases.

That's generally true. However, state law concerning conflict of laws often calls for the application of the law of other states or even of foreign countries when the subject matter of the case occurred in another jurisdiction. Now, conflict of laws is a fairly complicated area of law - there are many multi-volume treatises on the subject and it has evolved in different ways in different states over the last century. Suffice it to say that the aim is to apply the the most appropriate law. For example, it doesn't usually make much sense to apply: South Carolina business organization law to the charter of a company incorporated in England; South Carolina contract law to the issue of whether a contract was formed in Germany; or South Carolina tort law to a car accident that happened in Canada.

Keep in mind that this isn't because the foreign law applies in South Carolina, but rather that South Carolina law has determined that the foreign law is the most appropriate to the case. Also note that South Carolina, like every other state, will generally refuse to apply a foreign law when it would be repugnant to South Carolina public policy.

2. In NO CASE should “foreign law” take precedence over State law in the lives of the citizens of South Carolina with regard to criminal behavior. Example: Shari’a law regarding MARRIAGE (men can marriage little girls, or up to 4 females) IS NOT ALLOWED! “Honor killing” is not ACCEPTABLE!”

That doesn't happen as is. Crimes committed in South Carolina are already tried in South Carolina courts under South Carolina law. No American court applies foreign criminal law to any American criminal trial that I've ever been aware of.

Now, there was that case in New Jersey where a "Sharia defense" was raised in a domestic restraining order case where the husband was accused of spousal rape, which I think is the sort of thing both you and this bill are responding to. The defense was not arguing that Sharia law applied, but rather that the husband actually believe that what he was doing was ok due to his culture, and thus lacked the criminal intent necessary for the restraining order to be issued. This was a ridiculous defense, and while the trial court bought it, it was overturned on appeal.

That case really had less to do with applying a foreign law than it did with a baloney sort of "mistake of law/cultural insanity" defense and a family court judge incompetent enough to buy it. Luckily, the NJ appellate court unanimously rejected it.

3. In the case of Contract law, foreign trade, etc., that has FAR more to do with FEDERAL law, treaties, etc. than with State law.

Actually, you might be surprised to know that you have it more or less backwards. Other than some treaties such as the Covention on the International Sale of Goods (CISG), federal law has virtually nothing to do with international contracts. They are almost entirely a state law matter, even when litigated in federal court. If, say, a South Carolina company makes a contract with a company in Germany, that law will usually be governed either by South Carolina law or German law - there is really no such thing as "federal contract law".
17 posted on 02/04/2011 7:09:37 PM PST by The Pack Knight (Laugh, and the world laughs with you. Weep, and the world laughs at you.)
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To: upchuck

Just wondering..is the NAACP boycott of SC still in effect?


18 posted on 02/04/2011 7:25:01 PM PST by ken5050 (Palin/Bachman 2012 - FOUR boobs are better than the two we have now!)
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To: PistolPaknMama
I can't imagine a citizen of a foreign country can sue a US citizen in a state court for an offense that was committed in a foreign jurisdiction.

They can and do. Now, there are often venue problems - the court is far from the witnesses and the site of the tort and the judges aren't familiar with the law. That's what a motion for forum non conveniens is for.

There was a heavily cited Supreme Court case, Piper Aircraft Co. v. Reyno, where the estates of six Scots killed in a plane crash in Scotland sued the plane and propeller manufacturers in American court - the Supreme Court ultimately upheld the trial court's dismissal of the case on forum non conveniens grounds. It was not because it would be legally improper for them to sue in the United States, but rather that the federal court in Pennsylvania was inconvenient to hear the case, and that the case would be better heard in Scotland.

What happens more often, though, is that a citizen of a foreign country will sue the US citizen in his (the plaintiff's) own country, and, after obtaining a judgment, will bring an action in the US defendant's state court to enforcement the judgment. The US state court will typically enforce that judgment unless it can be shown that the defendant had no notice or opportunity to be heard, the foreign court lacked subject matter jurisdiction, there was fraud on the court, or enforcement of the judgment would be repugnant to state public policy. They will do this as a matter of judicial comity even though the United States has signed no treaty requiring the enforcement of foreign judgments.

You are correct that service of process on a US citizen sued in foreign court would be made through the State Department - that is the procedure provided for in the Hague Convention on international service of process, to which the United States is a signatory. However, service of process on that US citizen in an action on the foreign court's judgment in US state court would be governed by state law.
19 posted on 02/04/2011 7:31:10 PM PST by The Pack Knight (Laugh, and the world laughs with you. Weep, and the world laughs at you.)
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To: The Pack Knight; Lurking Libertarian
"The South Carolina bill only prohibits the enforcement of foreign law "if it would violate a constitutionally guaranteed right of this State or of the United States."

First, you're right. Despite how it's described in the article (and it's described poorly, if not entirely inaccurately), this particular state statute isn't as crazy those passed in Tennessee and Oklahoma (OK might have actually been a Constitutional Amendment).

In any event, can you think of any private arbitration agreement that would be enforceable under existing US federal law, or South Carolina state law in instances where contractual obligations violate "constitutionally guaranteed right(s)"?

Neither can I.

Although, I would stipulate that this is South Carolina, so who knows what kind of crazy-ass provisions are secreted away in that state constitution. Of course, even with this state statute, any limitations or prohibitions on binding arbitration established by state law would (I believe) be superseded by the Federal Arbitration Act (see: Southland Corp. V. Keating, 465 U. S. 1).

Which of course begs the question, why. Why go through this ridiculous legislative circus, to prevent something that is already clearly prohibited by existing federal law and volumes of Supreme Court precedent?

After the Legislative body of South Carolina remedies the problems of Sharia Law being forced upon their frail citizens and whatnot, maybe they can then pass additional laws forbidding mad-scientist from creating earth swallowing vortexes, and stuff - 'cause you know, that's a big problem, too.

20 posted on 02/04/2011 7:44:28 PM PST by OldDeckHand
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To: patriot preacher
"Example: Shari’a law regarding MARRIAGE (men can marriage little girls, or up to 4 females) IS NOT ALLOWED! “Honor killing” is not ACCEPTABLE!”

I'm just curious, but do you believe that, without the adoption of this statute, it would be somehow possible for two residents of South Carolina to enter into a private contract that adopts binding arbitration under some kind of Sharia law, where a a US mediator would then, following the relevant foreign law, somehow order or endorse an honor killing and such? You think that's how US federal law and South Carolina law works currently?

"In the case of Contract law, foreign trade, etc., that has FAR more to do with FEDERAL law, treaties, etc. than with State law."

Nope. State judges, all the time, enforce private arbitration agreements, or consent to jurisdiction or forum selection clauses in questions of contract law. All the time.

21 posted on 02/04/2011 7:52:46 PM PST by OldDeckHand
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To: PistolPaknMama
By the way, the foreign citizen usually wants to sue in American court if he can, particularly in tort cases. American tort laws, particularly concerning damages, are unusually generous to the plaintiff. Also, American discovery rules are possibly the most liberal in the world - it's a lot harder to compel the other party to produce evidence in almost any other country.

This was what was going on in the Piper Aircraft case. The plaintiff's definitely wanted the case tried under Pennsylvania or California law, not Scottish law. In Scotland, there was no such thing as a wrongful death claim as we know it in the States. The survivor could only recover for their own "loss of society/loss of consortium" - they could not, as they could under American law, recover for the decedent's medical expenses or pain and suffering or the loss of the decedent's future income.

The point is that you actually see quite a few foreign plaintiffs suing US defendants in US court for things that happened overseas. It happens a lot in products liability cases. You also see it in things like the suits against Union Carbide over the Bhopal disaster, or suits by Indonesian aborigines against Freeport McMoran.
22 posted on 02/04/2011 8:11:39 PM PST by The Pack Knight (Laugh, and the world laughs with you. Weep, and the world laughs at you.)
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To: OldDeckHand
In any event, can you think of any private arbitration agreement that would be enforceable under existing US federal law, or South Carolina state law in instances where contractual obligations violate "constitutionally guaranteed right(s)"?

Neither can I.


Besides that, US courts already decline to apply foreign law when doing so would be repugnant to the public policy of the forum state. That is a well-established exception to the general rules of judicial comity, and requires no special, hastily-written statutes.

One issue that has popped up in recent years is "libel tourism", where a foreign or sometimes even an American plaintiff will sue an American defendant for defamation in a foreign court under foreign law - usually in England - and then seek to enforce the judgment in American court. Obviously, they do this in order to get around the First Amendment and the NY Times v. Sullivan line of cases and to take advantage of Britain's increasingly plaintiff-friendly libel laws.

Congress unanimously passed a law last year addressing the issue, making foreign defamation judgments unenforceable in the U.S. if the claim would have been barred by the First Amendment had it been brought under U.S. law. Of course, even before that statute and similar recent state statutes were passed, courts were already declining to enforce such judgments on the grounds that they violated the forum state's public policy.
23 posted on 02/04/2011 8:28:52 PM PST by The Pack Knight (Laugh, and the world laughs with you. Weep, and the world laughs at you.)
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To: The Pack Knight

Wow, that’s another world from divorces and Section 1983 cases, which are my experience. Interesting stuff, thanks for the insight.


24 posted on 02/04/2011 8:34:27 PM PST by PistolPaknMama
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To: OldDeckHand
In any event, can you think of any private arbitration agreement that would be enforceable under existing US federal law, or South Carolina state law in instances where contractual obligations violate "constitutionally guaranteed right(s)"?

Actually, come to think of it, I just thought of one. Lets say Joe the Software Engineer, a South Carolina citizen, does some independent contract work for a German company. His employment contract includes a choice of law clause providing that German law will apply, and a nondisclosure agreement.

Now, such an agreement is generally enforceable in the United States, but it does obviously restrain a constitutional right - freedom of speech. Under the South Carolina bill, would the German company be able to sue Joe in South Carolina court for breach of contract if Joe, say, divulged sensitive details of his work in his blog? I don't think it would be a totally unreasonable interpretation of the plain language of the bill to say that they couldn't, especially when you read section 2(C)(1) of the bill:

(C) Notwithstanding another provision of law, if any contractual provision or agreement:

(1) provides for the choice of a foreign law to govern its interpretation or the resolution of a dispute between the parties and the enforcement or interpretation of the contractual provision or agreement would result in a violation of the constitutional rights of a person, the contractual provision or agreement must be modified or amended to the extent necessary to preserve the constitutional rights of the parties.


Maybe I'm reading it all wrong, but can you see where that provision might be construed as rendering Joe's non-disclosure agreement unenforceable even though it would be perfectly enforceable if the contract chose South Carolina law?

Of course, it could mean that the term "violation" does not include rights voluntarily contracted away, but I don't know any way a contract could "violate" a right that doesn't involve some voluntary forbearance of that right by a party. And doesn't every 1L learn when reading Hamer v. Sidway one of the basic tests of consideration is the forbearance of some right, and do not all rights one could forbear in a contract in some way enjoy at least some Constitutional protection?

Perhaps I am engaging in reductio ad absurdum, but this bill seems to lend itself well to that.
25 posted on 02/04/2011 9:12:00 PM PST by The Pack Knight (Laugh, and the world laughs with you. Weep, and the world laughs at you.)
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To: ken5050
Just wondering..is the NAACP boycott of SC still in effect?

Yes. And the Confederate flag (that's what they're pissed about) still flies at the State House.

On Jan 18, 2011, the NAACP held a MLK rally at the capitol in Columbia. They built a three-sided cover to surround a statue of George Washington. More, including photos, here.

26 posted on 02/04/2011 9:17:57 PM PST by upchuck (When excerpting please use the entire 300 words we are allowed. No more one or two sentence posts!)
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To: The Pack Knight
"Perhaps I am engaging in reductio ad absurdum, but this bill seems to lend itself well to that. "

Does it lend itself well, or does it needlessly complicate the law, and make it less likely that foreign companies would want to contract with Joe in the first place?

Actually, it's an interesting question - and it's a question of law that I'm sure the legislators that crafted the bill didn't intend to inspire, right? Yes, clearly NDAs are fully enforceable in American law. But, would a German NDA be fully enforceable after the implementation of this law, because as you point out, the most narrow reading of that statute might be interpreted to be a "violation of the constitutional rights of a person" because of 1A considerations. It adds complication to the contract, where complication needn't be added, IMHO.

So what have we established? The statute "cures" a problem that was never a problem, but under certain circumstances, and with the right (or wrong) trial judge, at least one statutory provision could further complicate, and unnecessarily encumber legitimate contract agreements as an unintended consequence. Is that the right thing to be doing in a state with near double-digit unemployment already?

I thought Republicans were suppose to be the party that eased business regulations, not complicated them.

27 posted on 02/04/2011 10:21:31 PM PST by OldDeckHand
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To: Lurking Libertarian
...The contract says that U.K. law governs.

1) They should sue in the UK.
2) You can put anything you want in a contract, the court will uphold those terms as long as they don't conflict with US law.

..a South Carolina resident goes on vacation in Canada and gets into an auto accident. The injured Canadian driver sues the South Carolina driver in South Carolina court.

I think that you would have to file your suit in Canada where the damage/injury occured. If you did sue for damages in SC I would expect SC laws and procedures to apply. What if it's Mexico or Saudi Arabia? Should a SC court follow their procedures and laws if the incident happens there or if both parties in the suit are from there?

28 posted on 02/05/2011 12:00:11 PM PST by SC Swamp Fox (Aim small, miss small.)
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To: The Pack Knight

Thank you for all your comments on this thread, I replied before reading all the way through. I shouldn’t have done that.


29 posted on 02/05/2011 12:13:45 PM PST by SC Swamp Fox (Aim small, miss small.)
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To: PistolPaknMama
I can't imagine a citizen of a foreign country can sue a US citizen in a state court for an offense that was committed in a foreign jurisdiction.

It happens every day-- that's just a consequence of having trade and tourism across international boundaries.

Perhaps it could be brought in federal court through the state department, but most likely it would be brought in the Canadian jurisdiction where the offense occurred and service of process would be made through the US state dept.

The foreign plaintiff could sue the U.S. citizen in a foreign country, but the judgment would be useless if the U.S. citizen had no assets in the foreign country to collect from; the foreign plaintiff would then have to bring a second lawsuit in the U.S. to enforce the judgment from the foreign country. So, most likely, they would sue in the U.S.; the plaintiff can typically choose between federal or state court. No State Department involvement necessary.

Could be wrong but a really interesting what if.

There is a reason that every law school teaches a course on "conflicts of laws." I tried a case once in federal court in New York involving a shipping contract where we had parties from Switzerland, Norway, England, Venezuela, New York, Connecticut and Florida; some aspects of the case were governed by the law of England, other issues were governed by the laws of New York.

30 posted on 02/07/2011 10:15:34 AM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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