Skip to comments.Shariah Law and American State Courts: An Assessment of State Appellate Court Cases
Posted on 05/19/2011 8:52:49 AM PDT by robowombat
The Center for Security Policys report, Shariah Law and American State Courts: An Assessment of State Appellate Court Cases evaluates 50 Appellate Court cases from 23 states that involve conflicts between Shariah (Islamic law) and American state law.
These cases are the stories of Muslim American families, mostly Muslim women and children, who were asking American courts to preserve their rights to equal protection and due process. These families came to America for freedom from the discriminatory and cruel laws of Shariah. When our courts then apply Shariah law in the lives of these families, and deny them equal protection, they are betraying the principles on which America was founded.
The studys findings suggest that Shariah law has entered into state court decisions, in conflict with the Constitution and state public policy. Some commentators have said there are no more than one or two cases of Shariah law in U.S. state court cases; yet we found 50 significant cases just from the small sample of appellate published cases.
Others have asserted with certainty that state court judges will always reject any foreign law, including Shariah law, when it conflicts with the Constitution or state public policy; yet we found 15 Trial Court cases, and 12 Appellate Court cases, where Shariah was found to be applicable in these particular cases. The facts are the facts: some judges are making decisions deferring to Shariah law even when those decisions conflict with Constitutional protections.
Shariah Law and American State Courts: An Assessment of State Appellate Court Cases includes summaries of several cases in which the courts application of Shariah law appears to be in direct conflict with Constitutional liberties and the public policies of the state.
Shariah Law and American State Courts: An Assessment of State Appellate Court Cases Version 1.2 / May 18, 2011 (PDF, 635 pages, 2.4 MB)
NOTE: In the fifty full-text published court cases, the highlighted search terms are included for the readers convenience.
For more information, contact the Center for Security Policy www.securefreedom.org
Any judge allowing the use of any law not found in U.S. or applicable state statute has declared himself/herself as being guilty of malfeasance. Period. 14th Amendment: “no state shall ... deny to any person within its jurisdiction the equal protection of the laws”. No wiggle room. No possibility of misunderstanding.
Well since tyhe Courts are trying to reinstitute discrimination against women and Children, why not strip women of the right to vote and end child labor laws?
Really, only statues, not the Constitution of the United States or the relevant state constitution, not treaties the U.S. had entered into? (Okay I know, you really meant to include that: I'm just yanking your proverbial chain.)
I agree, but with third exceptions. First, the biggest, judges should apply Common Law, when statutes are ambiguous or in areas where only case-law applies. The Founders assumed English Common Law as the basis for many notions found in the Constitution. Abandoning Common Law in favor of the whims of majorities in legislatures has actually been a detriment to American liberty. In fact, when no U.S. precedents are available, considering precedents from other Common Law countries (the U.K; Canada, excluding Quebec on civil cases; Australia; or New Zealand) is entirely appropriate.
Second, if a state has statutory provisions for parties to a dispute to select a binding arbiter whose decisions can be enforced by the courts, provided the decisions do not violate Constitutional or statutory protections, the courts in such circumstances may need to consider the basis for the binding arbiter's decision, even if that basis is Latin or Orthodox canon law, rabbinical law, some African tribe's law, or yes, even Sharia law.
Third, in the case of disputes naturally involving either canon law or its equivalent (property and personnel disputes within religious institutions, for instance) or foreign law (disputes involving foreign corporations in which actions both inside and outside the U.S. matter to the dispute, for instance) it is appropriate for courts to consider the other legal system.
But in all cases, the courts jolly well ought not violate or abrogate the Constitutional, statutory or Common Law rights of parties to a dispute simply because some other system of law is relevant to the dispute. (I would note that some courts lately, the Indiana Supreme Court being an egregious example, don't seem to need any help from consideration of foreign law to abrogate simultaneously or Constitutional and Common Law rights.)
I apologize for not properly dotting my i’s and crossing my t’s. I am not a lawyer; nor do I play one on TV, even after staying at a Holiday Inn. ;-)
I do understand the use of arbitration. However, (and I think this is very pertinent) it is my understanding that in those instances the judge cannot just throw out Federal and state law and turn things over to a rabbi or immam, especially when one of the parties does not agree with the application of the alternative solution. Nor should he be allowed to apply foreign law in cases where arbitration is not allowed. Some violations of law are a matter for society as a whole to settle rather than devolving htings into a family blood feud. Likewise, common law cannot be applied where a specific law on the subject has been enacted.
I confess that my primary point on this subject is that I completely and vocally object to foreign laws being applied within the boundaries of the sovereign nation of the United States of America. If someone believes that a legal concept currently in force in another country should be applied here, then let them go about it the right way.