When GOD and LAW don't square!

When God and the Law Don’t Square.
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GOOD MORNING FLINT ! Early edition
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Date 2/18/08 By Terry Bankert
http://attorneybankert.com/
Posted full article first to Flint Talk THEN summarized, for discussion, at:
http://flinttalk.com/viewtopic.php?p=25070#25070
Full article at Google blog Good Morning Flint!
http://goodmorningflint.blogspot.com/ with citations.

When God and the Law Don’t Square .[TNYT]

With the increased number of foreign born we see in Genesee County Family Court how cultures and our laws clash. Most often in custody disputes.[trb]

(THE)Discussion on how to reconcile differing cultures and religions is, indeed, a sensitive issue, and one that needs to be addressed.[Z]

My daily bloggs , as here, are often just my curiosity peaked by what I see in the news. Here the question: Is there room for religious doctrine in Family Court, specifically Muslim. I look for 4 sources and spend no more than 2 hours. I hope you find it interesting, I learned .[trb]

A PRETTY good way to generate an outcry, as the archbishop of Canterbury learned in Britain recently, is to say that a Western legal system should make room for Shariah, or Islamic law. When the archbishop, spiritual leader of the world’s 80 million Anglicans, commented in a radio interview that such an accommodation was "unavoidable," critics conjured images of stonings and maimings, overwhelming his more modest point. [TNYT]

Remarks made about the introduction of Shariah -- a strict form of Muslim law -- by England's Anglican leader, Archbishop Rowan Williams, sparked off a storm of criticism. His comments, made in the form of a speech and a separate interview with the BBC, caused such a hostile reaction that they had to be clarified in a subsequent declaration, and in another speech.[Z]

Sharia
Arabic: ش?ر?ي?ع?ة? transliteration: Šar§i`ah, is the body of Islamic religious law. The term means "way" or "path to the water source"; it is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Islamic principles of jurisprudence and for Muslims living outside the domain. Sharia deals with many aspects of day-to-day life, including politics, economics, banking, business, contracts, family, sexuality, hygiene, and social issues.
There is no strictly static codified set of laws of sharia. Sharia is more of a system of how law ought to serve humanity, a consensus of the unified spirit. Based on the Qur'an (the religious text of Islam), hadith (sayings and doings of Muhammad), (sayings and doings of the early followers of Muhammad), ijma (consensus), qiyas (analogy) and centuries of debate, interpretation and precedent.
SEE: http://en.wikipedia.org/wiki/Sharia

DIVORCE JUDGEMENTS AND RELIGIOUS TRIBUNALS

The archbishop,the most Rev Rowan Williams did not propose importing Shariah into the criminal law and was referring mostly to divorces in which both sides have agreed to abide by the judgment of a religious tribunal. His proposal was groundbreaking only in extending to Islamic tribunals in Britain a role that Jewish and Christian ones have long played in the judicial systems of secular societies. Courts in the United States have endorsed all three kinds of tribunals.[TNYT]

The speech, also given on Feb. 7, was titled "Civil and Religious Law in England: a Religious Perspective," the first in a series of lectures on Islam and English law at the Royal Courts of Justice. In his address Archbishop Williams questioned the assumption that all citizens should be "under the rule of the uniform law of a sovereign state."[Z]

Anyone who heard the actual words would be aware he was referring to the fact that Muslims who have a dispute involving the moral law as it applies to them and consult a cleric of their faith expect the cleric to be guided by Sharia law.[TNE]

BRITIAN

"Certain provisions of Shariah are already recognized in our society and under our law, so it's not as if we're bringing in an alien and rival system," the archbishop said in a speech and a television interview.[WT]

UNITED STATES

"The law of the United States should not "make room for sharia," any more than it should for any other religion. But I can understand why the Archbishop of Canterbury was shocked by the reactions to his lecture from the British Prime Minister and many commentators. Their remarks cause me to wonder if they read his statement in its entirety."[wp]

"My understanding is that Muslims in Great Britain have not entered into British civil society as much as most Muslims have in the United States. In America we have separation of religion and government, but Britain has an established religion, the Church of England. I do not in any way want to imply that Muslims in this country are not as faithful in practicing their religion as are their fellow believers in other parts of the world. I am not aware, however, of any outcry by American Muslims to be allowed to live under sharia law." [wp]

BRITAN HAS RELIGIOUS COURTS AND THE CHURCH OF ENGLAND

There are about a dozen Sharia courts in Britain -- although they have no formal legal status -- and are mainly used to resolve family disputes.[AL]

The biggest is the Islamic Sharia Council in Leyton, east London. Since it was set up in 1982, it has dealt with 7,000 divorce cases in accordance with Quranic values.[AL]

"We act as a religious court, which means deciding about their dispute and giving them written determination, based on Sharia, Islamic principles and jurisprudence," one of its founders, Mufti Barkatullah, told AFP.[AL]

THERE ARE STATE COURTS IN THE UNITED STATES THAT ACCOMODATE RELIGION
TEXAS ISLAMIC COURT

In 2003, for instance, a Texas appeals court referred a divorce case to a local tribunal called the Texas Islamic Court. [TNYT]

INSTITUTE OF CHRISTIAN EDUCATION

In 2005, the federal appeals court in New Orleans affirmed an award in an employment arbitration by the Institute for Christian Conciliation, which uses Biblical teachings to settle disputes. [TNYT]

BET DIN

And state courts routinely enforce the decisions made by a Jewish court, known as a bet din, in commercial and family law cases.[TNYT]

ISLAMIC ATTITUDES TOWARD WOMEN

The outcry in Britain was apparently something of a visceral reaction to aspects of Islamic law, though the archbishop himself condemned what he called the inhumanity of "extreme punishments" and some Islamic countries’ "attitudes toward women."[TNYT]

In his lecture the archbishop of Canterbury called for a reflection on how we deal with conflicts between civil law and diverging cultures and religious beliefs. He mentioned, for example, the question of conscientious objection to performing abortion, and the matter of Catholic adoption agencies being forced to assign children to homosexual couples.[Z]

SHOULD AMERICAN FAMILY COURT DEFER TO RELIGIOUS INSTITUTIONS?

The larger question, legal experts in the United States said, is whether government courts should ever defer to religious ones. The answer may depend on whether the people involved authentically consented to religious adjudication, whether they are allowed to change their minds and whether the decisions of those tribunals are offensive to fundamental conceptions of justice.[TNYT]

CHRISTIANITY has in the past been the equal of the worst aspects of Sharia fundamentalists. In medieval times, punishments for law-breakers were horrendous. Burnings, branding, floggings, etc, all were common and nightmarish during any of the periods of Inquisition.[TNE]

According to Sharia law, the right to divorce is incumbent first on the man. A civil divorce as such is only automatically validated in Islamic law if the man has sought it or given his consent. If not, the woman can begin divorce proceedings or Khula with the council.[AL]

The scholars will then look to either get the husband's consent, reconcile the couple or grant the woman the talaq at their discretion if the husband does not turn up in person or is clearly in the wrong.[AL]

CUTTING EDGE OF FAMILY LAW AND RELIGIOUS LIBERTY

All of that, said John Witte Jr., a law professor at Emory University, "is the big frontier question for religious liberty."[TNYT]

The archbishop speaks in sonorous circumlocutions and he was not a model of clarity when he was interviewed by BBC radio on Feb. 7. Even his followers had a hard time untangling just what he meant.[TNYT]

"In doing so the archbishop was not suggesting the introduction of parallel legal jurisdictions, but exploring ways in which reasonable accommodation might be made within existing arrangements for religious conscience," the declaration continued.[Z]

"I’m an Episcopalian," said Janice A. Schattman, the lawyer in the Texas case who persuaded the appeals court to defer to the Islamic one. "Rowan Williams, bless his heart, can be quite obscure."[TNYT]

THE PARTIES SHOULD BE ALLOWED TO STIPULATE TO A RELIGIOUS COURT?

But the archbishop’s central point seemed to be that people should be able to agree to have family law cases resolved by religious courts if all concerned agree. By Monday the archbishop was backtracking, saying he had spoken clumsily with "a misleading choice of words." [TNYT]

Azizah Y. al-Hibri, the president of Karamah, an international lawyers’ group based in Washington and made up of Muslim women, said she applauded the archbishop’s initial position [TNYT].

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SHOULD THERE BE DIFFERENT STANDARDS FOR DIFFERNET RELIGIONS IN FAMILY COURT?

"Muslims, Christians and Jews should all deal with their own family law issues in their own arbitration councils," she said. "The government should stay out of the bedroom." [TNYT]

The quest for common ground between people of different faiths, and between faith-based moral principles and the ethics of secular humanism, can only be beneficial for social cohesion and peaceful coexistence.[TNE]

COMMUNITY TENSION IN MUSLIM NEIGHBORHOODS IN BRITIAN - NO GO AREAS

Tension between some aspects of Islam and English society has, in fact, been very much present in recent times. On Jan. 6 the Anglican Bishop Michael Nazir-Ali of Rochester published an article in the Sunday Telegraph warning that Islamic extremists have created "no-go" areas in Britain where it is too dangerous for non-Muslims to enter.[Z]

THERE IS A ROLE FOR RELIGIOUS COURTS.

The Archbishop points out that if the law of the land takes no account of what is for certain people a "proper rationale for behavior" it falls short of "communicating" with someone involved in the legal process. But if the legal system should protect individuals on grounds of their corporate religious identity, perhaps in some manner of delegating certain legal functions to the religious court of a community a number of queries or objections arise. The Archbishop discussed three such objections, not the least of which was that in some areas, especially family law, recognition of some "supplementary jurisdiction" could reinforce some of the most repressive elements in the society, particularly concerning the role and liberties of women.[WP]

"Attempts have been made to impose an 'Islamic' character on certain areas, for example, by insisting on artificial amplification for the Adhan, the call to prayer," he also noted.[Z]

CANADIAN RESPONSE , NO!

That notion has met resistance where Islam is involved. After the authorities in Ontario raised the possibility that arbitrators might use Shariah to settle family disputes, formal recognition of all religious arbitrations there, including existing Catholic and Jewish ones, was withdrawn. [TNYT]

"There will be one law for all Ontarians," Dalton McGuinty, the province’s premier, said in 2005. [TNYT]

SHOULD RELIGION AFFECT PUNISHMENT IN CRIMINAL CASES ,NO!

Almost no one suggests that criminal law should take into account the defendant’s religion in meting out punishment. At the other extreme, few people object to allowing purely commercial disputes between sophisticated businesspeople to be adjudicated through private arbitrations. The hard questions, as the archbishop learned, arise in the area of family law, where the agreement to arbitrate may be uninformed or obtained by duress. State courts have occasionally refused to enforce separation agreements reached through bet din arbitrations on the ground that the woman involved had been pressured into participating.[TNYT]

PEOPLE CHANGE RELIGIONS ,WE WANT FINALITY IN FAMILY LAW JUDGEMENTS.

Once consent is given, moreover, questions arise about whether and when it may be withdrawn. "People have a right in Western systems to change religions," said Douglas Laycock, a law professor at the University of Michigan. "Can they opt out after the dispute arises or after the judgment is given?"[TNYT]

RELIGIOUS COURTS AND CONSTITUTIONAL RIGHTS WHEN IN CONFLICT WHICH ONE TO LOOK TOWARDS?

Most fundamentally, some judgments from religious tribunals may be at odds with constitutional protections, human rights and basic notions of fairness.[TNYT]

In an article to be published shortly in The Washington and Lee Law Review, Robin Fretwell Wilson, a law professor at Washington and Lee University, wrote that Muslim women who decide to seek a divorce can face harsh financial consequences under Islamic law. "Threatened with the prospect of certain poverty," she wrote, "some women will surely be forced to stay in an abusive relationship."[TNYT]

Professor Wilson said in an interview that government courts should refuse to enforce any ruling from a religious tribunal that leaves a woman worse off than she would have been in a conventional divorce.[TNYT]

"Society has a stake in the outcome," she said. "Some religions are tilted against women."[TNYT]

PARTY AGREES TO ARBITRATE BY ISLAMIC RULES , ITS ENFORCEABLE.

In the Texas case, however, it was a woman, Rola Qaddura, who sought arbitration in a dispute over a dowry and the distribution of assets after a divorce. The parties had signed an agreement to arbitrate their case "according to the Islamic rules of law by Texas Islamic Court" in Richardson.[TNYT]

The appeals court said the agreement was valid. Ms. Schattman, who represented Ms. Qaddura, said the appeals court’s ruling was proper and unexceptional. "An agreement to arbitrate is an agreement to arbitrate," she said. [TNYT]

In the end, though, the parties could not agree on a panel of arbitrators and the effort collapsed, Ms. Schattman added, saying of the Islamic court: "It was kind of a new thing."[TNYT]


"You can't simply get of the plane, take off your coat and abandon all your law and culture at the same time. There is sometimes a difficulty in knowing which law to follow. [abc]

Posted here by
Terry Bankert
http://attorneybankert.com/

—where did this come from---

[TNYT]
The New York Times
http://www.nytimes.com/2008/02/17/weekinreview/17liptak.html?ref=world

[TNE]]
The Northern Echo
http://www.thisisthenortheast.co.uk/mostpopular.var.2046957.mostcommented.sharia_law.php

[Z]
ZENIT
http://www.zenit.org/article-21799?l=english

[WP]
The Washington Post
http://newsweek.washingtonpost.com/onfaith/jane_holmes_dixon/2008/02/law_must_uphold_rights_not_the.html

[WT]
The Washington Times
http://washingtontimes.com/article/20080214/FOREIGN/164497040/1003/FOREIGN

[AL]
The Al Arabiya News Channel
http://www.alarabiya.net/articles/2008/02/17/45756.html

[ABC]
ABC NEWS
http://www.abc.net.au/news/stories/2008/02/08/2157733.htm

[TRB]
Comments of Terry Bankert
http://attorneybankert.com/

Posted here by
Terry Bankert
http://attorneybankert.com/

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