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Is Oklahoma Sharia Ban Constitutional?

Is Oklahoma Sharia Ban Constitutional?


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People have the right to specify in their wills where there property goes, and courts try to figure it out as best they can. For example, I could write in my will to divide it in accordance with the Canon law of the Catholic Church, or in accordance with the neutral arbitration of Judge Smith, or in accordance with the charter of my foundation. Assuming the courts could figure out my wishes, they would do so.

To treat "in accordance with sharia law" as different than those other things would seem to be blatant religious discrimination.

They can not enforce laws in their wills. If that were true you could have someone killed and say you had a 1st amendment right. The 1st amendment has nothing to do with property anyway.
 
Where does this do anything remotely like that?



Nothing like that is in play here. It has nothing to do with anything other than how a court exercises its legitimate judicial power. That is squarely within the purview of the state, with no question whatsoever.

I haven't read the law and haven't considered the merits of the point; it isn't a point I am arguing. I'm just saying, in principle the states wouldn't be able to order their courts to subsume a power that specifically belonged to the federal government, even though they have a relatively open ended right to order their courts.
 
No, because it specifically includes law "as provided in the United States Constitution . . . the United States Code." Any treaty would fall under that.

Read the bill. It doesn't make sense. International law includes foreign treaties. That bill just said that state courts must abide to US Law at the same time it must disregard US law.
 
Read the bill. It doesn't make sense. International law includes foreign treaties. That bill just said that state courts must abide to US Law at the same time it must disregard US law.

Treaties to which the US is a party are specifically part of United States law, which the bill specifically includes. But not all "international law" is part of US law. There are plenty of international treaties and international bodies to which the United States is not a party and has no effect here. There are also plenty of things claimed as international law, or customary international law, which the United States does not recognize.

This measure doesn't attempt to trump foreign policy or foreign relations in any way, by its own wording, it cannot.

But even if it's confusing or self-conflicting, that does not rise to the level of "unconstitutional."
 
I haven't read the law and haven't considered the merits of the point; it isn't a point I am arguing. I'm just saying, in principle the states wouldn't be able to order their courts to subsume a power that specifically belonged to the federal government, even though they have a relatively open ended right to order their courts.

Well, perhaps you should brush up on the actual topic of discussion before commenting. I made no claims of which you speak.
 
Read the bill. It doesn't make sense. International law includes foreign treaties. That bill just said that state courts must abide to US Law at the same time it must disregard US law.

I see where you get your name from. I wish fewer people needed the obvious pointed out to them, and with such regularity.

Beyond treaties, this fiasco prohibits OK courts from applying any customary international law that the United States does recognize, which is quite a bit. So it really is a contradiction on its own terms.
 
Beyond treaties, this fiasco prohibits OK courts from applying any customary international law that the United States does recognize

Nope. Sorry.
 
Well, perhaps you should brush up on the actual topic of discussion before commenting. I made no claims of which you speak.

I'm not interested in discussing the topic. But if you assert that states have a right to order courts in response to Guy Incognito's complaint that this subverts the federal government's right control foreign policy, then I am going to contextualize that assertion so that there is less chance people get the wrong idea.
 
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I'm not interested in discussing the topic. But if you assert that states have a right to order courts in response to Guy Incognito's complaint that this subverts the federal government's right control foreign policy, then I am going to contextualize that assertion so that there is less chance people get the wrong idea.

No, I said the states have the power to define their courts and the jurisdictions of those courts, which they absolutely do. I didn't say anything at all about giving courts the power over anything having remotely to do with foreign policy, not in the slightest -- or anything else non-judicial, for that matter.
 
Treaties to which the US is a party are specifically part of United States law, which the bill specifically includes.

But at the same time bans.

But not all "international law" is part of US law. There are plenty of international treaties and international bodies to which the United States is not a party and has no effect here. There are also plenty of things claimed as international law, or customary international law, which the United States does not recognize.

True. But to lump international law in its entirety as this bill has done effectively creates a contradiction. It does not state that US treaties are not included.

This measure doesn't attempt to trump foreign policy or foreign relations in any way, by its own wording, it cannot.

Attempt is irrelevant. You may not attempt to do something, but end up doing it anyway.

But even if it's confusing or self-conflicting, that does not rise to the level of "unconstitutional."

We'll see about that. Explicitly forbidding state courts to apply treaties is ignoring the COTUS in delegating foreign relations to the federal government.
 
No, I said the states have the power to define their courts and the jurisdictions of those courts, which they absolutely do. I didn't say anything at all about giving courts the power over anything having remotely to do with foreign policy, not in the slightest -- or anything else non-judicial, for that matter.

No, but you were responding to somebody who did make that assertion.

Guy Incognito: This takes away foreign policy authority from the federal government.

Harshaw: The states have the authority to order their courts.

That's the cross-purpose, and it implies the authority to order courts exceeds the federal government's authority over foreign policy. The argument has since developed to you adding:

Harshaw: This legislation does not take foreign policy authority away from the federal government.
 
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But at the same time bans.



True. But to lump international law in its entirety as this bill has done effectively creates a contradiction. It does not state that US treaties are not included.



Attempt is irrelevant. You may not attempt to do something, but end up doing it anyway.



We'll see about that. Explicitly forbidding state courts to apply treaties is ignoring the COTUS in delegating foreign relations to the federal government.

Well, you know what? If all you're going to do is say "IS TOO!!!!" and repeat yourself, I'm not sure what else to say. I already responded to each of these points, including any apparent contradiction in the law.

If there's a conflict within the law itself, that's not a point of constitutionality. And besides, a court reads any law first in the light which favors its constitutionality, because constitutionality is the very last question a court will consider on any law, if and ONLY if it can't first be decided on other grounds.
 
No, but you were responding to somebody who did make that assertion.

Guy Incognito: This takes away foreign policy authority from the federal government.

Harshaw: The states have the authority to order their courts.

That implies the authority to order courts exceeds the federal government's authority over foreign policy. The argument has since developed to you adding:

Harshaw: This legislation does not take away foreign policy away from the federal government.

:roll: I was responding to a number of points at the same time; you're picking and choosing which ones to match up with the others. He said a lot more than just that (and he's rather absent in defending it himself, too), so you can't take my entire repsonse and claim it's only to one specific thing. He was talking about separation of powers, as though a state doesn't have the right to define a court's jurisdiction. Indeed, it does.
 
Well, you know what? If all you're going to do is say "IS TOO!!!!" and repeat yourself, I'm not sure what else to say.

Well, you never addressed the points.

I already responded to each of these points, including any apparent contradiction in the law.

Responded does not equate to address.

If there's a conflict within the law itself, that's not a point of constitutionality.

But the conflict is with the bill forbidding states to apply US laws that deal with foreign relations as it forbids all international law with no exceptions. Effectively stating that the federal government no longer has the sole right to conduct such business. That is not constitutional.

And besides, a court reads any law first in the light which favors its constitutionality, because constitutionality is the very last question a court will consider on any law, if and ONLY if it can't first be decided on other grounds.

Fair enough. I'll give you that.
 
:roll: I was responding to a number of points at the same time; you're picking and choosing which ones to match up with the others. He said a lot more than just that (and he's rather absent in defending it himself, too), so you can't take my entire repsonse and claim it's only to one specific thing. He was talking about separation of powers, as though a state doesn't have the right to define a court's jurisdiction. Indeed, it does.

Indeed. I am picking and choosing a point I think could be misleading to a person who doesn't enjoy an informed awareness of federalism. It's moot now, though, as the argument has developed to a point where the two points relate to each other.
 
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Well, you never addressed the points.



Responded does not equate to address.

Ah. Living up to the "child" part of your name, are you? You know I did. Or perhaps you don't, but I still did.


But the conflict is with the bill forbidding states to apply US laws that deal with foreign relations as it forbids all international law with no exceptions. Effectively stating that the federal government no longer has the sole right to conduct such business. That is not constitutional.

That's your spin on what it says. But it's not what it actually says. Given what it explicitly INCLUDES, it's clear to me that it's not intended to dispense with treaties, US-recognized international law, or to impede on any foreign relations powers at all. To the extent it conflicts with itself, it can be fixed with a few words which will not change the substance of the measure at all.


Fair enough. I'll give you that.

And as such, a court is highly likely to read it the way I just did, above.
 
Ah. Living up to the "child" part of your name, are you? You know I did. Or perhaps you don't, but I still did.

Or more appropriately, you believed you addressed it. Respond does not equate to address.

That's your spin on what it says. But it's not what it actually says. Given what it explicitly INCLUDES, it's clear to me that it's not intended to dispense with treaties, US-recognized international law, or to impede on any foreign relations powers at all.

Unless there are written exceptions within the terms defined, it should ban the entirety of it. It outright states no international law period. We agree it is contradictory.

To the extent it conflicts with itself, it can be fixed with a few words which will not change the substance of the measure at all.

Indeed. The problem is at the moment, the law does not have those terms.
 
Or more appropriately, you believed you addressed it. Respond does not equate to address.

OK, Child. Bang your highchair about that one all you want.


Unless there are written exceptions within the terms defined, it should ban the entirety of it. It outright states no international law period. We agree it is contradictory.

Never said it wasn't potentially contradictory, but I've given you plenty of sound reasons why it doesn't "ban the entirety of it" in both factual legal terms and as a matter of standard statutory construction. You may choose to pretend I did not, but I gave them to you nonetheless. :roll:


Indeed. The problem is at the moment, the law does not have those terms.

Which does not make it unconstitutional, only confusing.
 
Yes, the ban is constitutional.

All people are bound by the laws that are passed - white, black, Christian, Jew, Islam.

If portions of Sharia law become the law of the land, everyone would be subject to those laws. The legal system is supposed to be applied to all persons, and there are no special provisions for one religion or another.

I personally don't want to be governed by Sharia law - do you?

What it the law instead of Sharia said Christain or Jewish law would you then say it's Constitutional?
 
What it the law instead of Sharia said Christain or Jewish law would you then say it's Constitutional?

No worries, the law was worded by a bunch of ignorant right wing morons so it most likely also took care of that.

From what I can gather, legal experts (something the writers of the law did not consult... and no the RNC and Tea Party are not legal experts) believe that ALL forms of religious material are now banned.... since that can go under "international law". Yes, American's did not invent/write the bible, that was someone in Europe/Middle East, and hence ... illegal to use. So that means the 10 commandments and all that... illegal to use by judges in any way.. even indirectly.. oh bugger... that means the 7 deadly sins are now legal!

In other words, it is looking more and more like the "right wing" is equal to "stupid" these days.
 
Moderator's Warning:
Some posts here are getting close to being flaming. Please keep it calm and rationally discuss the issue. Thank you.
 
In other words, it is looking more and more like the "right wing" is equal to "stupid" these days.
One of these day's you'll write something worth reading.
Today is obviously not that day.
 
No worries, the law was worded by a bunch of ignorant right wing morons so it most likely also took care of that.

From what I can gather, legal experts (something the writers of the law did not consult... and no the RNC and Tea Party are not legal experts) believe that ALL forms of religious material are now banned.... since that can go under "international law". Yes, American's did not invent/write the bible, that was someone in Europe/Middle East, and hence ... illegal to use. So that means the 10 commandments and all that... illegal to use by judges in any way.. even indirectly.. oh bugger... that means the 7 deadly sins are now legal!

In other words, it is looking more and more like the "right wing" is equal to "stupid" these days.

I don't know what repressed backwater you live in, but the "7 deadly sins" have always been legal here. (Though the left is trying to outlaw certain of them, like gluttony.)
 
The law is superfluous because U.S. law still trumps Sharia Law, the only difference is in considering which aspects of Sharia Law correspond to the U.S. legal system. Kandahar gave the good example of property division. If the basis of someone's will is Sharia Law and a judge is dealing with a family controversy, it makes sense for the judge to look at all aspects in order to consider what might be best for the family.

All the people in OK have done is limit a judge's resources for determining a decision, and in a very broad, pre-emptive way that has nothing to do with any prior precedent or pre-existing case. The law is so superfluous that it doesn't even make sense that it was on the ballot. I know Muslims are the popular enemy at this time, but honestly... if nothing is happening then why pre-empt it? There was probably a more pressing ballot issue that could have taken its place.

People need to stop watching Beck and wake up to reality.
 
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The law is superfluous because U.S. law still trumps Sharia Law, the only difference is in considering which aspects of Sharia Law correspond to the U.S. legal system. Kandahar gave the good example of property division. If the basis of someone's will is Sharia Law and a judge is dealing with a family controversy, it makes sense for the judge to look at all aspects in order to consider what might be best for the family.

Not if that person wants the court to ignore the law and instead apply things on the basis Sharia.

All the people in OK have done is limit a judge's resources for determining a decision, and in a very broad, pre-emptive way that has nothing to do with any prior precedent or pre-existing case. The law is so superfluous that it doesn't even make sense that it was on the ballot. I know Muslims are the popular enemy at this time, but honestly... if nothing is happening then why pre-empt it?

You should probably make sure you're on solid ground before you make sweeping proclamations such as this. The OK senator who introduced this cited something very specific. I suggest you read up.
 
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