Sane Email Update Vol. 6. No. 8
November 29, 2010
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***
The growing recognition by the public
that sharia is the underlying threat doctrine driving the global jihad and the
war against the West gave voice in the last mid-term election in Oklahoma. An
amendment to the Oklahoma Constitution, known as Question 755, was proposed that
would prohibit state courts from considering and using international law and sharia.
The amendment passed overwhelmingly by an affirmative vote of 70% of those voting.
Immediately, the Muslim Brotherhood apologists, the progressives,
and the elite law school professoriate attacked the amendment as unnecessary and
therefore a manifestation of the “ill-informed” Tea Party electorate. Not surprisingly,
the attacks also included the typical narrative of “Islamophobia.”
CAIR,
the Hamas-front group seeking to insinuate sharia via the Muslim Brotherhood’s
stealth effort to destroy this country, sued to challenge the constitutionality
of the amendment. The federal court stayed the implementation of the amendment
and is now considering the amendment’s future.
One of
the typical criticisms of Question 755 articulated by the law school professoriate
appeared in the LA Times soon after the amendment passed. Written by
a Pepperdine University Law School professor, the essay began with a condescending
attack against the Oklahomans who voted for the amendment and then proffered an
entirely bogus argument against the move to prohibit sharia in state courts. The
essay is available online
here.
David Yerushalmi and his legal staff
were asked to comment on this essay and the other published criticisms of the Oklahoma
amendment and they did so thoroughly and in a style fully accessible to non-lawyers.
Mr. Yerushalmi’s essay is available as a white paper at the Center for Security
Policy here.
We also append that response here in full. We believe it is
a valuable explanation of how sharia threatens our legal system here in the U.S.
and why legislative efforts to prohibit sharia are important and possible. While
the Oklahoma amendment has its shortcomings, the effort was valiant and we can
only suggest to Oklahomans and to voters and legislators in other states to take
a look at the uniform draft legislation called the American Laws for American Courts
Act created by the Law Offices of David Yerushalmi, P.C., available online
here with a 40-minute continuing legal education PowerPoint presentation
explaining the act in detail.
***
Criticism
of the Oklahoma Constitutional Amendment Banning Sharia From State Courts: Legitimate
or Ill-Considered?
By: David Yerushalmi, Esq.
and the Legal Staff of the Law Offices of David Yerushalmi, P.C.
Criticism
of the Oklahoma constitutional amendment (Question 755), which prohibits state
courts from “considering or using” international law or sharia, was expected.
Interestingly, though, the specific critiques have not been well considered.
We begin with a concession. There is no dispute that Question
755 was poorly drafted and, as such, criticism directed at the legal professionals
who had a hand in the drafting is entirely legitimate. For example, there are
perfectly legitimate applications of foreign law in state courts that no one in
their right mind would oppose. Two parties who agree to be bound by the law of
a foreign jurisdiction when those foreign laws do not infringe upon any fundamental
liberty or important public policy of the state of Oklahoma is as innocuous and
conducive to the “freedom to contract” and the liberty inherent in private property
as it sounds.
Further, because the term “sharia” comes
with no real description, it is hard to know exactly how the courts will ultimately
interpret this term. Does ‘sharia’ mean some vague or subjective interpretation
of religious practice as the current federal court challenge intimates or is it
the sharia that occupies the place of secular law and political-military doctrine
at the level of normative praxis in many countries, in a variety of political and
military regimes, and as the guiding threat doctrine for terrorist organizations
around the world?
Finally, it is hard to know what the
drafters meant, and therefore what the voters understood, by the word “considered.”
Does a court “consider a foreign law” if the parties agreed to its application
with the court merely “applying” the foreign law as the mutual will of the parties?
But, conceding that Question 755 was poorly drafted does not
render it or its purposes silly or dismissible. Indeed, most public commentary,
both by the law school professoriate and the Muslim Brotherhood aligned apologists
for sharia, begin their remarks identically with a snide, if not “snarky,” criticism
to the effect that the ill-informed electorate of Oklahoma (70% of those voting)
misguidedly thought they were responding to an existential threat that doesn’t
exist. Meaning, only fools respond to ghosts.
To be clear,
and so as not to fall prey to a counter-“snarkiness,” we will identify this initial
criticism as the “shariah Boogey-Man” and deal with it seriously. Similarly, we
will deal with the corollary to this “Boogey-Man” criticism, which is the charge
of “Islamophobia.” That is, people are frightened of a non-existent “shariah threat”—the
Boogey Man—because there is a “cottage industry” of fear-mongers who create this
Boogey-Man to drive an anti-Islam agenda.
The third criticism
of the “anti-sharia” legislative movement reflected in Oklahoma’s constitutional
amendment is a kind of “don’t-throw-out-the-baby-with-the-bath-water” argument.
That is, even if there are bad things (i.e., the dirty bath water) about sharia
as applied in real terms around the world, allowing individuals and communities
to order their lives through private agreements and to resolve their private disputes
through private arbitrations is a legitimate exercise of freedom guaranteed under
the Due Process Clause (i.e., freedom to contract), and, in the case of religious
agreements and arbitrations, a legitimate exercise of the First Amendment’s protection
of religious freedom.
This baby-and-the-bath-water argument
points out that there are all sorts of private arbitrations, including religious
courts like the Jewish Bais Din, which allow private parties who share a common
belief system to use their own system to adjudicate their internal disputes. This
is especially useful since a secular court would not be permitted to decide a contract
dispute, for example, between two parties who had explicitly agreed to adjudicate
their disputes according to Jewish law or Catholic canon. It would be an unconstitutional
“entanglement” problem (violating the Establishment Clause of the First Amendment)
if a secular court had to get into the business of deciding what Jewish law or
Catholic canon was and what it said about a given dispute. Thus, we allow these
parties to regulate their own commercial and even social intercourse through private
arbitration. And, this paradigm fits our limited government, libertarian bent
as a free people.
Not surprisingly, this argument concludes
by warning against the slippery slope: if you outlaw sharia because it includes
some dirty water around the globe, you will have effectively outlawed all such
religious and private adjudicative bodies unless you are going to discriminate
against the law of Muslims, which would violate the First Amendment and the Equal
Protection clause of the Constitution.
While the “slippery
slope” argument can, and ought to, be a legitimate cautionary policy tool, the
invocation of the slippery slope argument can be its own form of slippery slope
and must be applied with a large measure of caution.
For
example, the slippery slope concern is a proper brake on public policy when a given
policy seeking to curb a specific, discreet problem would have a likelihood of
curbing similar behavior that is in fact not a problem, and indeed, behavior that
might be of value to the society. But, we must be careful when using the slippery
slope argument that it doesn’t become a disguised form of “moral relativism” or
irrationalism. Thus, the slippery slope argument often is used implicitly to make
the argument that society can make no distinctions between “good things” and “bad
things” and that any policy effort to rid society of bad things will invariably
engulf good things. But that suggests there are no principled and practical distinctions
between the good thing and the bad thing. In other words, the slippery slope argument
becomes a lazy man’s way of asserting the proposition that society can draw no
valid, or at least effective, value-based lines.
In this
third critique where the argument is proffered that outlawing sharia arbitrations
will lead to outlawing all private religious arbitrations, the question that must
be asked is whether there are any principled and prudential distinctions between
sharia as a “bad thing” and other religious codes as a “good thing” (or if not
a “good thing” at least as an “acceptable thing”)? When we come to this third
argument and to this question about line drawing and distinctions we’ve suggested
must be asked, we will find ourselves answering yet a fourth criticism of the anti-sharia
movement.
This fourth criticism amounts to a kind of absolute
subjectivism. Thus, the argument goes, you cannot outlaw sharia because sharia
can mean just about anything to just about anyone. In other words, sharia is
not an objectively knowable thing. This argument is often articulated with the
preface that since Islam and sharia are not guided by a hierarchical jurisprudence
like the Catholic Church or even like our own federal court system with a Supreme
Court, any effort at outlawing it will suffer from over breadth and capture perfectly
non-threatening “interpretations” of sharia. To the extent that an overly broad
anti-sharia law outlaws non-violent and otherwise non-criminal religious worship,
it would violate the First Amendment.
We turn now to
respond to each of these four critiques of Question 755 in turn.
[1]
The Boogey Man Critique:
The Boogey Man critique
suggests a rather straight-forward empirical question in that it suggests that
Question 755 is a response driven by an irrational fear (i.e., “Islamophobia”)
of a threat that doesn’t exist in this country. We answer it accordingly.
First, the global jihad leadership against which we have aligned
most of our military and intelligence resources since 9/11 informs us in Arabic,
Pashtu, Urdu, Persian, and even in English that the global jihad against the West
is fundamentally directed and determined by Islamic law, or sharia.
The
jihad leaders further tell us that their ultimate goal, in addition to that of
the “defensive jihad” incumbent on every Muslim to rid the Islamic world of an
occupying infidel presence (including, but only parenthetically so, those nasty
Zionists residing in the midst of dar al-Islam), is the implementation of sharia
law as the law of the land in any place Muslims step foot. This sharia hegemony
is to be achieved through an offensive jihad. This offensive jihad, while not
incumbent on every Muslim, is incumbent upon the Caliph or Islamic leaders of the
day in the obligatory effort to spread Islam through dawa (i.e., the pre-violent
“call to Islam”). Islamic law makes clear that if the “call” to the infidels goes
unheeded, jihad or kinetic war is a legal obligation falling upon the Muslim nation
as a collective (i.e., the ummah), thereby exempting the infirm and less than enthusiastic
when there are sufficient sharia-faithful combatants to wage this battle effectively.
Besides, the law provides other means and methods for the individual to aid the
offensive jihad, such as charitable financial contributions (what we term in federal
criminal law as material support of terrorism).
Moreover,
this “doctrine” espoused by the jihad leadership is not some perverse or perverted
sharia doctrine rejected by the vast majority of the world’s Muslims. A quick
look out into the real world informs us that this sharia-driven jihad doctrine
is sufficiently “orthodox” and includes sufficient followers that the defense against
the global jihad takes on mammoth proportions. Thus, surveys in the Muslim world
consistently evidence that somewhere between 50% to 70% of the global Muslim community
desires to create a unified Caliphate for all Muslims and to order that political
hegemony according to a strict al Qaeda-like sharia.
From the World Opinion Survey, Univ.
of Maryland, April 2007, at pp. 21-22; “Full Report” and “Questionnaire” available
for download
here.
Keep in mind that Indonesians, occupying
the most populous Muslim dominated country with approximately 230 million Muslims,
are typically held up for display as the quintessential example of Islamic practitioners
of “moderation” and “multi-culturalism.” Yet, we see that a majority in this
country would actually opt for al Qaeda’s “strict sharia” as the law for every
Muslim country. This is not some peaceful “sharia,” but al Qaeda’s “strict sharia.”
Indeed, the global view of Muslims on all of the relevant issues driving the global
jihad is no less disconcerting:
Id. at p. 15.
So,
the Boogey Man does exist, at least for the enemy combatant mujahideen across the
globe, including those here in the Homeland operating as “lone wolves” or in “sleeper
cells.” And, if we extrapolate from the World Public Opinion survey cited above,
the Boogey Man is quite alive and well for 600 to 840 million of the estimated
1.2 billion Muslims worldwide, the vast majority of which live in Muslim countries.
This suggests, of course, that their more assimilated brethren living in the West
are of little import to “mainstream” Muslim views of sharia and jihad. Indeed,
Muslims living in the West who view Islam as a kind of westernized and tolerant
religion which adheres to the political doctrine of the “Separation of Church and
State” can be said to have “perverted” and “distorted” mainstream Islam, or, at
best, to be occupying a minority view of what “true Islam” demands.
But
the proponent of the Boogey Man critique might in fact accept these brute facts
about the “true” or “majority” Islam and still argue that sharia poses no threat
to Oklahomans and their way of life. At this point, the Boogey Man argument morphs
into the following declaration: even assuming sharia is al Qaeda-like in the Muslim
world, there is simply no practical threat that Oklahomans or the electorate in
any other state would vote to accept sharia as the “law of the land.”
But
this argument is trite because it assumes the only way sharia can find its way
into our legal system is through the vote. This is of course false. Specifically,
there are at least three ways for sharia to find its way into our courts and legal
system in ways which would deprive Oklahomans of their federal and state constitutional
liberties: comity, choice of law issues, and choice of forum/venue determinations.
We will touch upon each of these in brief.
Comity. State courts are asked to recognize and enforce foreign
judgments and private arbitral awards all of the time. This procedure for recognizing
another juridical body’s decision as binding is called granting comity to the foreign
judgment. For our purposes, a private arbitral award is like a foreign judgment
because it does not arise from a state court action.
Granting
comity to a foreign judgment is mostly a matter of state law. And, almost all
state and federal courts will grant comity unless the recognition of the foreign
judgment would violate some important public policy of the state. This doctrine
is called the Void As Against Public Policy Rule and has a long and pedigreed history.
Indeed, even where preemptive federal laws (i.e., the Federal Arbitration Act)
and treaties (i.e., Convention on the Recognition and Enforcement of Foreign Arbitral
Awards) require courts to honor binding arbitration awards, whether domestic or
foreign, the treaties and federal laws all include some provision granting the
domestic court an out if the recognition would violate the public policy of the
state.
Similarly, the Uniform Child Custody Jurisdiction
and Enforcement Act (“UCCJEA”), enacted in some form by most states, also incorporates
a kind of Void As Against Public Policy Rule within the calculus of granting a
foreign child custody order comity. Specifically, the UCCJEA precludes comity
when “the child custody law of a foreign jurisdiction violates fundamental principles
of human rights.”
It is hard to imagine how a law, the
very purpose of which is the destruction of Western law, and the processes of which
include systemic and endemic discrimination against women and non-Muslims, would
not a priori be void as against public policy. Unfortunately, because
state legislatures have not been explicit about what their public policy is relative
to sharia, the courts and the parties litigating in those courts are left to their
own devices to first know what sharia is, and second, to understand that granting
a sharia judgment comity is ipso facto offensive to our way of life and
the principles underlying our constitutional republic.
And,
indeed empirically, we find published judicial opinions which accept comity for
sharia-based foreign judgments and arbitral awards. And these published judicial
opinions quite obviously only represent the tip of the iceberg since courts render
these kinds of judgments all of the time through unpublished orders rather than
published opinions.
While there are also published opinions
where the courts have rejected the application for comity precisely on the grounds
that sharia is offensive to Due Process and Equal Protection, the courts have ended
up all over the map precisely because the state legislatures have not taken the
time to carefully articulate their respective public policies on the recognition
of sharia-based judgments. That the people of Oklahoma have chosen to do so, even
if clumsily, is hardly grounds for criticism.
In fact,
the common law Void As Against Public Policy Rule makes clear that courts should
be the last resort for defining and determining what is or is not the public policy
of the state. Almost all state and federal courts recognize that it is first and
foremost the duty of the legislature to carefully define and articulate that which
the courts should void on public policy grounds. Leaving the public policy vague
and therefore subjecting it to the vagaries of individual judges is risking more
than just a “private” mistake. Recall that once a party obtains a sharia-based
foreign judgment or arbitral award, the winning party typically walks into the
state court and seeks to invoke the heavy hand of the police power of the state
to enforce that judgment or arbitral award. Is the state prepared to justify the
use of its police power to enforce a sharia judgment based upon a law which seeks
our destruction as a free and self-represented people and which discriminates
against women and non-Muslims?
Choice of Law. A second avenue where we have observed the application
of sharia in state courts is under the choice of law doctrine. The choice of law
doctrine applies in one of two cases. One in contract and one in tort. In contract
law, the parties are free to decide which jurisdiction’s law governs. In state
courts, this typically arises when one party is from a different state in the Union.
But it is also the case that disputes between a domestic party and a foreign party
can end up in state court where the dispute arises from a contract which requires
the application of a foreign law. Again, given our respect of private property
and the freedom to contract, state and federal law permits these kinds of “choice
of law provisions.”
But what happens when the parties
have chosen a law that is inherently offensive to the state and federal public
policy because the chosen law if applied in the U.S. would violate fundamental
constitutional liberties and privileges? One answer is that parties should be
free to waive their constitutional rights if they so choose. Indeed, even criminal
defendants may knowingly and freely waive their rights.
The
waiver argument, however, relies specifically on a knowing and fully volitional
waiver. Moreover, there are some rights that simply may not be waived. For example,
we don’t allow a criminal defendant to waive his right to be free from cruel and
unusual punishments. Further, we don’t allow the criminal defendant to waive a
criminal judicial proceeding. Even a guilty plea must be presented to a judge
who has a constitutional obligation to be certain that the plea was entered knowingly
and freely.
Finally, this is not merely a “private” choice
as we pointed out above. Once the court applies the foreign law, the winner of
the litigation is able to then apply to the police power of the state to enforce
that judgment. The question remains: ought the state allow the police power to
enforce a judgment based upon a law that is intrinsically offensive to our way
of life and our state and federal constitutions? While the hard core libertarian
might opt for sharia law being applied in these cases, the choice by Oklahomans
to reject sharia is most certainly rational and justifiable and is in line with
most common law applications of the Void As Against Public Policy Rule.
The choice of law doctrine also finds its way into state courts
if the underlying tort or injurious event occurred in a foreign jurisdiction.
Thus, there are reported cases where a U.S. citizen goes abroad, is injured, returns
home, and then sues the defendant in state or federal court. If the injurious
event, the witnesses, and the evidence are all situated in the foreign jurisdiction,
the choice of law doctrine will, in most cases, result in the domestic court applying
the foreign jurisdiction’s law to the case. In this instance, the “choice of law”
is hardly knowing or volitional. The state’s determination that it is the public
policy of the state in those cases to apply state law and not sharia’s inherently
offensive laws is once again quite rational and justifiable.
Forum/Venue Determinations. The final
avenue for sharia to insinuate its way into our courts and legal system is through
the various determinations relating to where the litigation will take place. Thus,
as in choice of law, parties to a contract might freely choose to agree that all
disputes will be litigated in Saudi Arabia, which applies sharia as the law of
the land. But, as in the choice of law analysis, what kind of determination might
we require before a party could be said to have knowingly and freely waived a fundamental
constitutional liberty which is absent in Saudi Arabia? Arguably, the case of
two parties agreeing to litigate in a sharia jurisdiction is less problematic because
in and of itself it does not touch the state court system, at least not until one
of the parties regrets that provision and seeks to void the choice of venue provision
in the contract and litigate in the U.S.
But what of
the non-contractual forum determinations? For example, in one case, a woman visited
her parents in Saudi Arabia and while at the local resort, broke her neck and became
a tetraplegic. After coming to Massachusetts for treatment in the U.S., the poor
woman sued the Saudi company in a Massachusetts state court. Not surprisingly,
the Saudi company moved to dismiss the case based upon the common law doctrine
of forum non conveniens, which means that Massachusetts would be an inconvenient
forum. When the injurious event, all of the evidence, and the witnesses are in
a foreign forum, the forum non conveniens doctrine holds that the domestic court
ought to dismiss the case and allow it to proceed in the foreign forum.
Thankfully, this particular court took a look at the fact that
sharia discriminates against women and non-Muslims, together with other infirmities
of Saudi law, and denied the motion to dismiss. The woman presumable got her day
in a just and constitutionally compliant Massachusetts court, something that would
not have been available to her in Saudi Arabia under sharia. But for every case
where the court went the extra mile to guard against the abuses of sharia, there
are myriad cases where the court abdicated its obligation to engage in a serious
investigation of sharia and turned its back on this argument.
Thus,
after a careful analysis, we are able to say with confidence that the Boogey Man
of sharia does exist both as an extrinsic threat to our existence via jihad and
as a domestic stealthy threat through its insinuation into our courts and legal
system. But, as we’ve also come to understand, state legislatures need not acquiesce
to this stealthy application of sharia in domestic courts because our law has built
within it a mechanism to allow state legislatures to determine that any foreign
law like sharia that is inherently offensive to our Constitution, and indeed hostile
to our very way of life, is void as a matter of public policy.
[2] The “Cottage Industry” Of Islamophobia:
The corollary of the Boogey Man critique, that Question 755 has
been driven only by a fear-mongering anti-Islamic narrative, has now been rendered
irrelevant. It is irrelevant because it is now merely ad hominem since
we have come to understand both that sharia is a threat to our constitutional republic
and our way of life simply and that it has already found its way into our courts
and legal system precisely because state legislatures have not taken a stand.
The people of Oklahoma have taken a courageous stand and as we will note later,
there are patently constitutional ways to legislatively preclude sharia from raising
its ugly head in our legal system and to do so in clearer, more legally precise
ways than was achieved by Question 755.
[3] The
Baby-In-The Bath-Water Argument:
The baby-in-the-bath-water
argument is, as noted above, a rendition of the slippery slope argument: if you
outlaw sharia, which we can all now see and understand is constitutionally offensive,
you might end up outlawing legitimate ecumenical arbitration panels. And, if these
religious groups were forced to litigate in secular courts rather than private
arbitration venues, they would not be permitted to adjudicate the issues based
upon their own religious codes because that would involve a likely entanglement
of church and state and violate the Establishment Clause of the First Amendment.
But, this argument rests on a slippery slope that doesn’t exist.
A state could outlaw sharia simply as the Oklahoma Amendment does. Granted, the
Oklahoma amendment should have set out more clearly that it was outlawing sharia
as an objectively knowable legal-political-military doctrine and system which seeks
our destruction. Further, Question 755 should have stated explicitly that it was
not referring to Islam as purely religious worship. The fact remains, however,
that Question 755 does not affect any other religious arbitration courts.
Further, Oklahoma could have prohibited comity for sharia arbitration
panels in a facially neutral way by simply refusing to grant arbitral awards comity
in state courts if the underlying law applied domestically would violate fundamental
state and federal constitutional liberties. An example of this approach, and one
we recommend for obvious reasons, is the draft Uniform American Laws for American
Courts Act we created for our client, Public Policy Alliance, and which is fully
explicated at our law firm web site
here. The end result is that only those “religious legal codes” which
otherwise are offensive to our constitutionally protected liberties would be affected.
That could hardly be a bad thing.
Even if one might make
out an argument that Jewish law or Catholic Canon also violates some fundamental
state or federal constitutional liberty and would therefore be void as against
public policy under the American Laws for American Courts Act, all this means is
that the parties must create their own private enforcement mechanisms. Thus, even
a sharia court could operate as long as the parties agreed to abide by the arbitration
panel’s decision for purposes of enforcement and not attempt to exploit the state’s
police power. And, if one considers that possibility too naïve to be practical,
there are a host of other steps the religious courts could use to create private
enforcement. For example, expulsion from the community in religious matters is
a wholly private, informal enforcement measure, which is a method used by Orthodox
Jews to good effect. Another possibility is a system of posting private bonds
at the time of execution of a contract. For example, the litigants would provide
guarantees that they will abide by the private arbitral award, such as title to
real estate to be held “in blank” by the religious court as escrow agent in the
event of a dispute and judgment.
The point being that
outlawing the use of the state’s police power by offensive legal codes, even ones
touching upon religious matters, is not a slippery slope to be concerned about
if the underlying legislation is sharia-centric or facially neutral but focused
on the protection of fundamental constitutional liberties.
[4]
Sharia Is Subjective And Subject To Too Many Varied Interpretations To Be Outlawed:
The final critique of the Oklahoma constitutional amendment is
a kind of predicate to the slippery slope argument above. If sharia is unknowable
as an objective reality because Muslims can understand it in an infinite number
of ways, then any sharia-centric effort like Oklahoma’s Question 755 is going to
suffer from over breadth and be imposing constitutionally objectionable limitations
on Muslims who understand sharia to be simply guidelines for their wholly innocuous
and peaceable religious worship.
This argument is of course
made possible by the fact that Question 755 was poorly drafted without a clear
statement that the sharia outlawed by the amendment was the objectively knowable
legal doctrine and system which operates effectively as the law of the land in
several Muslim countries and which operates as the “law of a sector” such as family
law in almost all Muslim countries. If sharia were in fact simply a matter of
individual interpretation to all Muslims, it would not be the subject of entire
university departments, it would not be reducible to a code of law as in the text
Reliance of the Traveler endorsed by Al Azhar University, the citadel of Sunni
jurisprudence, it would not be the basis for family laws of most Muslim countries,
and it would not be the basis for the ultimate desiderata for 50-70% of the Muslims
living in Muslim countries who desire an al Qaeda-like strict sharia.
In
other words, the slippery slope argument most certainly cannot rest on the argument
that outlawing sharia would be like outlawing “humanism”—that is, humanism can
mean anything to anyone. To be sure, humanism is unknowable to the law precisely
because there is no code or authoritative corpus juris that defines humanism.
But sharia is, at least for the 600-840 million Muslims represented by the World
Public Opinion survey something quite knowable and as such quite subject to critical
analysis and to the law’s reach. To argue that sharia is akin to humanism is fatuous
at best; purposefully deceptive at worst.
A
Final Point:
The Oklahoma Litigation. The litigation sponsored by CAIR contesting
the Oklahoma constitutional amendment (Munir Awad v. Paul Ziriax et al.,
Case No. 5:10-cv-01186-M) is predicated upon the fact that Question 755 did not
carefully define sharia as the objectively knowable legal-political-military system
which seeks our destruction. As a result, the plaintiff’s pleadings and motion
papers assert vaguely that sharia is akin to a generic Islamic religious worship.
The obvious counter to this position is that Oklahomans did not seek to preclude
Islamic religious worship, but rather to prevent an objectively knowable legal-political-military
doctrine and system which inherently violates the public policy of the state to
protect and to preserve the liberties guaranteed under the state and federal constitutions.
The federal courts are obligated to interpret Oklahoma’s constitution,
if possible, in ways that would not violate the U.S. Constitution. Whether the
federal courts will engage in such deference is hard to predict, but the trend
when it comes to matters which might “offend Muslims” is to bend in the direction
of the Muslims out of fear of more violence and retribution.
©
2010 Law Offices of David Yerushalmi, P.C. All rights reserved. This material may
not be published, broadcast, rewritten, or redistributed without the expressed
written approval of the Law Offices of David Yerushalmi, P.C.
***
As always,
those of us at the
Society of Americans for National Existence continue our focus:
To strengthen America’s national existence
by probing a new and deeper discussion of the issues others fear or just avoid.
We are convinced that with integrity of purpose and thought, graced with civility,
the SANE message will pierce the fog that lies heavy on the ground.
All
the best,
SANE Staff
Society of Americans for National Existence (SANE)(sm)
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