Pat Gunn (dachte) wrote,
Pat Gunn

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Crescent Sun

On Sharia Law bans in the United States:

Background: Fear of Islam is on the rise in the United States - in some cases, this may be related to the growth of extremism in Europe. Europe has a demographics problem - they've opened their doors to large-scale immigration, and over time have grown a population of radical-conservative Muslims (as part of a spectrum that extends to people who are fully integrated and accepting of western values - radicals like Anjem Choudary push a form of Islam very different than either purely cultural Muslims or others who would not greatly change broad British society, although it's worth noting that Choudary's group is itself much more mild than Talibani flavours of Islam). As a result, radical-conservative Christians (and nationalists, and people who value Enlightenment values strongly, sometimes the same people) have taken strong stances against indiscriminate immigration, in many cases being indiscriminate in how they push their concern. In the US, this is not yet a major concern - immigration of that sort is not happening in sufficient numbers relative to our population to lead to incidents or voting sway, while in smaller countries like Nederlands, high-profile people like Theo van Gogh and Pim Fortuyn have been assassinated, creating an atmosphere where criticism of Islam is considered dangerous (unfortunately also creating figures like Geert Wilders). Here, the antiislamic movements are more strongly based by a mix of hostility of rural flavours of Christianity towards any other faith (sometimes including Judaism, sometimes not - the mental gymnastics on the topic are strange to see), and blame for the insult and pain of the destruction of the WTC on 9/11. BushJr, to his credit (or perhaps due to strong family/business ties to wealthy Arabs?), made an effort to distinguish between those who only see Dar al Islam and Dar al Harb and those who do not hold a "greatly reshape the world" perspective (yes, there are shades of grey here). With him gone and without clear conservative leaders taking a careful stance, conservatives are more free to press for revenge or their own form of cultural supremacy (not meant as derogatory here, careful!). The Oklahoma referendum banning state courts from applying international or sharia law in cases before them is an application of that. As I write this, a judge has put a hold to certifying that referendum, and is considering its constitutionality.

What issues are there?

  • What is the role of Islam in the United States? What should it be?
  • How does this compare to the role of Christianity?
  • Is Sharia acceptable as a form of private conduct? May it be prescriptive within communities that would accept it?
  • Is some form of Sharia, constrained to be within the confines of Oklahoma law, acceptable?
  • Does the law as written actually do anything? Does it do what it intends to do? Does it do anything it does not intend to do?
  • Is the law constitutional in purpose or in implementation?
From my perspective, the appropriate roles of Islam, Judaism, and Christianity in the United States should be the same - they are the private faiths, like any other, of some Americans. None should be privileged, funded, or entangled with the United States, nor may any of their forms be given cultural or legal autonomy from our mainstream culture and government. Any broad cultural or legal concerns should stretch into all the subsocieties and subcultures of a nation, with no exceptions carved for the sensibilities or needs of a particular subculture. Religion may not entail immunity/exception from the laws, nor should it ever create special status (thus any notions of appropriate types of slaughter, handling of wine, drug use, and the like are only expressable within the broad framework of laws that apply to everyone). To do otherwise is to fragment society and to give up on cultural steering, which I believe is a legitimate function of government (even as I believe the cultural steering should aim not to be felt as a heavy hand by most people).GI believe that Sharia and Halakah, alongside other creeds, are acceptable in part as forms of private conduct, depending on the specifics of their interpretation, but it is legitimate for the state, based on broadly held morality, to officially discourage or prevent some types of action or belief. These limits are largely invisible in the cities of the United States, but Enlightenment-derived societies have values that can be more easily seen in contrast to both certain Charedi neighbourhoods in Yerushalaim (where some forms of Judaism have modesty squads that will do anything from shunning to using violence against women dressed in blue jeans, or people driving cars on Shabbas) and the forms of Sharia in Iran or Saudi Arabia. The secular state is not obligated to respect these forms of cultural expression, even if they are supported by a network of theoretically voluntary social relations enforced by a promise to shun those who step beyond their bounds. It is, instead, obligatory for those who believe in an Enlightenment society to have the state be the expression of broadly liberal values - tolerance, but in the context of laws that are based on liberal norms rather than laws that permit other legal systems. Our societies must not permit honour killings (admittedly, not actually supported by Judaism or Islam), child or arranged marriage (traditional but not madatory in some forms of Islam and Judaism), subjugation of women, forced abstainance, or many other things that some subcultures desire. In this stance, I believe it is appropriate to disallow mediation-in-the-form-of-private-courts that enforce cultural norms contrary to liberal norms, to disallow private contracts that would do the same, and to continue to have laws shaped in a form that pave the path for liberal, enlightenment values. Forms of private courts that do not stand against these values may be permitted (although the monitoring required to ensure this may make such efforts not worth pursuing).

As a general principle, subcultures may not function as separate islands of civilisation.

That said, we consider the law as written. As the analysis linked above notes, there is a valid component to the law - it is not the duty of the government to interpret religious law; no hooks should be provided for subcultures to request some official interpretation. I add, as noted above, that in fact a willingness to enforce religiously inspired norms should not be assumed; unconscionable contracts may include ones that systematically amount to nulling liberal norms, for example wills that in a community deprive women from inheritance. I concur with the author of that analysis that religiously inspired requests must be stated in a secular manner to be considered by our courts, and further suggest that they be analysed in a public policy light in probate courts should they tread certain topical ground. However, the law as written also has problems - the lack of consideration for international law is problematic in that it makes participation in treaties potentially difficult. Still, are US courts permitted to consider international law/tradition in contracts currently? I would prefer to leave this to judicial tradition/discretion unless clearly undesirable results are found.

The law as intended is probably not necessary - the constitution as written already provides adequate protection, so far, from most state/church entanglement. I recognise that my interest in restriction/banning of private courts stands beyond the current law, but I don't believe the law addresses that. I suspect that the law is largely a political token/expression rather than a substantial addition to law, and that its actual effects likely don't amount to whatever is intended.

It remains to be seen how it will be interpreted - I believe that the most prominent challenge to it, by CAIR, is not one that should hold against a better-written law. Nontheless, the law as written is ill-constructed.

I add that I believe that it is a duty of the courts to block unconstitutional laws, and that the purpose of having state and federal constitutions is to enforce consistency and broad commitment to principles. The additional "speed bump" required to change the constitution in order to make certain changes is a worthwhile protection and an intended feature in the form of our democracy - additionally, I hold that this is a positive feature of our governmental structure. It is not an absolute ban on entering certain areas in our democracy, just a commitment not to do so without a much stronger consensus and a longer process of consideration. Voter anger at topics like this not being decided by a straight vote should be channeled into beginning a process to see if they can build broader consensus in order to reshape the OK constitution (and perhaps the US Constitution, if necessary). As always, the option of also or alternatively using power politics is open to them, if they believe strongly enough in whatever they're trying to accomplish and are willing to accept the consequences from either the law or their fellow citizens.

I also believe it is appropriate for courts to toss out laws that don't appear to do anything.

Oh hey I finally found a bicycle helmet that fits! I also finally have a rear bike light! I am considering getting a new bike! I feel a bit silly having just spent $700 for data recovery and relying on a really old mountain bike as my set of commuting wheels - keeping my current bike around and in good working order for the occasional trail rides (gah who knows where I'll be living in a year?) seems sensible. If I still feel this way tomorrow, maybe I'll buy it then.

Slightly weirded out that now I have two sisters (youngest two) who are engaged. Still, I'm happy for them. Maybe someday their big brother (and my other sister) will be married too..

Tags: politics

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