Monday, 29 November 2010

Oklahoma and Sharia Law Ban

Say what you like about America but its political system does allow the public to get involved in debate and decision making in a way that is very difficult this side of the Atlantic. One of the latest examples of this was the decision by citizens of Oklahoma to amend their State Constitution so as to ban Sharia law.

The legal background to the wording of the amendment makes interesting reading because Oklahoma law requires that any proposed amendment to the State Constitution needs to be accompanied by an explanation of the amendment and its purpose. The Ballot as put to the Voters of Oklahoma read as follows.

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties. Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

"C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. 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. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. "

After being passed the Amendment was immediately the subject of a legal case by the Council on American Islamic Relations and that legal case will no doubt drag on for several years. In the meantime the Constitutional Amendment has been put on hold and does not form part of the Oklahoma Constitution.

Most of the arguments against the Oklahoma Amendment have concentrated on the line that it is a breach of the 1st Amendment to the US Constitution which says
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

There is a similar provision in Article 1.2 of the Oklahoma Constitution which says
§ 2. Religious liberty - Polygamous or plural marriages.
Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.

The question for the Courts will undoubtedly be whether the proposed amendment amounts to a defacto interference with the "free exercise of religion" and/or "a religious test for the exercise of civil or political rights". It seems to me that the amendment as passed clearly does that in so far as it prevents the use of Sharia law even with regard to purely internal regulation of Muslim organisations or the personal use of Sharia in Arbitration. However I suspect that the amendment can be struck down on grounds that do not require the Courts to look to closely at the religious aspects of Sharia. The word in the amendment
provided the law of the other state does not include Sharia Law, in making judicial decisions. can be argued to be in breach of Article IV.1 of the US Constitution which requires that "full faith and credit shall be given in each state to the ... judicial proceedings of every other state" ie if another State recognises Sharia in part of its law Oklahoma has no right to disagree. Furthermore the refusal to recognise International law goes against several references in the US Constitution to the "law of nations" as being recognised by the Constitution.

It will be interesting to see how the case develops but legally speaking I do not give much credence to the survival of the amendment as passed.

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Wednesday, 24 November 2010

The Rule of Law or The Rule of Lawyers

I have copied the following report from Life Site News because I feel what Justice Scalia is denouncing in the US legal system is extremely relevant to the misuse of the European Convention on Human Rights and the judicial activism of the European Court of Human Rights which regards the convention as a "living instrument". Though a wonderful idea in liberal theory it is in fact a pernicious attack on democracy and the rule of law because the Convention can be used to mean whatever the Court decides it means.

"RICHMOND, Virginia, November 23, 2010 ( - U.S. Supreme Court Justice Antonin Scalia slammed the modern U.S. judiciary and the high court for using the idea of a “living constitution” to invent new rules and meanings that have led to a “right” to abortion and decriminalized homosexual conduct.

Scalia made his remarks last Friday during a University of Richmond luncheon lecture entitled “Do Words Matter?” The event was covered both by the Associated Press. “The Constitution says what it says and it doesn’t say anything more,” said Scalia to an audience of 250 people, most of them legal professionals and academics.

The 74-year-old jurist, appointed to the high court by President Ronald Reagan in 1986, warned that government by judges is inevitable when the original meaning of legal language in laws and constitutions is not respected. This attitude, he said, allows “five out of nine hotshot lawyers to run the country.”

“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”

Scalia pointed out that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.

(NB for non American readers the 14th Amendment reads as follows
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")

“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word - liberty - nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.”

He also commented on the modern confirmation process of Supreme Court justices, saying it was akin to a “mini-constitutional convention” because Senators are fighting about how a justice will interpret words. “The way to change the Constitution is through amendments approved by the people, not by judges altering the meaning of its words,” he added.

The AP reports that after the lecture, Scalia signed copies of his new book, “Making Your Case: The Art of Persuading Judges,” and was going to lecture a class on the constitution’s separation of powers at UR’s law school.

Justice Scalia, along with Justice Clarence Thomas, are the high court’s two jurists that firmly embrace an “originalist” doctrine - abiding by the original intent and context of legal language - when it comes to interpreting the U.S. Constitution and federal laws. Scalia has criticized the high court’s 1973 Roe v. Wade decision as an “improper” ruling, saying the founding charter of the U.S. federal government had nothing to do either with abortion or even things like homosexual activity.

If the U.S. Supreme Court reversed its position on Roe, abortion would once again become a criminal matter for the states to decide how to regulate or prohibit.

US State Department on Religious Freedom in the UK

The US State Department has issued its annual report on Religious Freedom in the world including the UK. It can be read at

I was actually contacted by the US Embassy in London earlier this year and asked to comment and add to their existing report so it is nice to see that they have kept in all the parts where I expressed concern about the direction of policy in Britain and the way in which religious freedom is increasingly being restricted by the misuse of Discrimination laws and "hate crimes"

In general however the main value of the report is providing a concise description of the legal and constitutional status, legislation and organisation of religions in the UK and is worth reading for that reason alone