Religious Arbitration

[flacaltenn]

I'm trying to figure this out. This concept of Sharia law existence becoming a threat to our existing legal system..

Can the voluntary abitration of CIVIL issues in a religious setting (mosque, temple, church) according to biblical law become a threat to our legal underpinnings?

Certainly, people can agree to arbitration terms of their choosing for CIVIL matters. It's only if the complaint is actionable under CRIMINAL penalty that the state can charge any of the parties involved. That's my understanding. So if the imam says you can beat your wife and give her a time-out in the garage and she AGREES to that arbitration, the state COULD charge the husband, but might not if the political pressures (in Dearbornistan, Mich) or (Brooklyn, NY for jews) were too severe.

Is this about it? Or is there more that I'm missing? Goes to the post by Hillbilly this morning about Sharia law and all the fuss about approving Mosque building...

[noonereal]

I did some Google and can't get a straight answer.

My guess is that when someone claims to be following Sharia law when beating there wife it is automatically a felony if this passes. Or did it pass?

I think the law is Tennessee's way of saying you are "not welcome here", straight up harassment.

[d-ray657]

Here is a month old CNN report (http://news.blogs.cnn.com/2011/03/06/tennessee-bill-would-make-it-a-crime-to-practice-sharia-law/) on the law.

With shame, I note that Oklahoma has passed such a law - and apparently Missouri is considering one too.

The proponents refer to a case in New Jersey in which a trial court gave a husband a pass on beating his wife because his religion allowed him to do so. What the proponents don't mention is that the trial judge's decision was reversed by the court of appeals.

Here is the text of the bill. (http://www.capitol.tn.gov/Bills/107/Bill/SB1028.pdf) I would be interested in knowing the source of the first several pages of allegations that are used to support the bill. Looking at it quickly, I didn't see anything about wife-beating.

BTW, I will give research lessons for the paltry sum of $500 per person.

Regards,

D-Ray

[flacaltenn]

Thanks guys..

I'm not usually that lazy about starting a thread. But we've been dodging tornado sirens and taking the computers up and down a lot lately... Particularly for D-Ray and that text of the Tenn legislation which is CERTAINLY nothing for me to support or be proud of..

I'm rapidly getting a stronger opinion here. Seems like Canada went out of the their in the early 90's to clear the way for Muslim religious arbitration and then recently backed all that down in light of "public opinion"..

http://www.stanford.edu/group/sjir/pdf/Sharia_11.2.pdf

Nevertheless, Boyd overlooked that the verdicts
of an entire community of Islamic Sheiks could neither
be answerable nor accountable to anyone. During
Boyd’s ground research, the NDP was ousted by a more
conservative government that ignored the issue for
years. It was the current premier of Ontario, Dalton
McGuinty, who recognized the growing controversy.
McGuinty acknowledged the overriding political
circumstances of recognizing Sharia in Canada. In
a smart political decision, Premier Dalton refused
recognition of Muslim arbitration. He affirmed that
one law would apply to all. In denying Sharia, Dalton
needed to reject recognition of the ecclesiastical law
of other denominations. Among these were Jews,
Catholics, and Jehovah’s Witnesses.7 The decisions
of private religious courts would no longer gain the
blessings of state enforcement. These groups could
however still pursue private arbitration in quiet.
Dalton’s decision would not allow the registration of any
decision under the Arbitration Act. Hence, it became
a matter of conscious decision of whether individuals
choosing to arbitrate under ecclesiastical law adhered
to the verdict. If the losing party does not wish to
recognize the decision, the state could not enforce the
verdict. Up until McGuinty’s decision, only the Jewish
and Catholic communities were actively pursuing
private arbitration. The Islamic community merely had
a request.


Evidently, the act of the state RECOGNIZING these religious verdicts and assisting in their ENFORCEMENT, was waaay too far.. I'll agree to that. Which leaves religious arbitration virtually unenforceable unless the parties just submit to the ruling.

However, that's not at all what the current flurry of legislation in the US is about.. It is (as NoOneReal said) clear and intense persecution.. And no amount of public opinion is gonna get me to support that. It SEEMS like all that is needed is a clear legal statement that the state will not RECOGNIZE or ENFORCE the verdicts of any of these religious courts be they Jewish, Catholic or Muslim.

Here's a Muslim perspective...

http://www.theamericanmuslim.org/tam.php/features/articles/islamic_sharia_and_jewish_halakha_arbitration_cour ts/
As an American Muslim I would be opposed to any suggestion that Sharia replace our American legal system for American Muslims or any other Americans, and I would be the first to fight any such possibility.

However, the inclusion of Sharia arbitration or alternative dispute resolution that might be utilized by Muslims who so choose after signing a binding arbitration agreement (signed by both parties in a dispute), or that might file an amicus brief with the court is not an alarming new idea. In fact, it is an existing option for religious communities. Any decision rendered by a tribunal or a panel of mediators is subject to appeal to the courts and must be consistent with American law and our Constitution.

Georgia state rep. Mike Jacobs told reporters that he couldn’t think of any instances of Sharia being forced on the good people of his state—but just to be sure, he introduced the “American Laws for Georgia Courts Act” earlier this week to block foreign or religious laws from being cited in state courts. A total of 16 states have passed or introduced anti-Sharia legislation since last February.

Wyoming State Rep. Gerald Gay (R-Casper), sponsor of a resolution in the Wyoming legislature which would, if passed, amend the state’s constitution to “forbid courts from using international law or sharia law when deciding cases.” Gay said “Americans need to pull their heads out of the sand and realize the threat, because “pretty soon you have the camel’s nose under the tent.”

Former Colorado congressman Tom Tancredo argued that Muslim immigrants won’t assimilate because their goal is to implement Islamic law: “What do you do with people coming for the purpose of advancing sharia law, which is not compatible in any way with the constitution of the United States? How do you deal with that? That’s another very scary thing because demographically the numbers are on their side.”

Rep. Phil Jensen who introduced an anti-Sharia bill in South Dakota has backed down. Tim Murphy notes that this may have had something to do with the unintended consequences of such bills. He notes

According to Roger Baron, a professor of family law at the University of South Dakota, the ammendment’s prohibition on foreign laws would remove the state from a number of agreements concerning child custody and child abduction. Because those agreements hinge on reciprocity, “foreign countries will not enforce our custody decrees,” he warned in a letter to policymakers in Pierre, which he provided to Mother Jones. “The result will be that a disappointed custody litigant will have every motivation to improperly take the child to a foreign country and remain beyond the reach of international law.”

In other words, the Sharia ban would replace a non-existent problem (in testimony this week, proponents of a Sharia ban could not produce a single South Dakota case in which Islamic law had been a problem) with a bunch of very real ones.

Generally, I'd give him what he's asking for if there wasn't the phrase, "subject to appeal in the courts". Meaning that the state would have to recognize the verdict and the proceedings in the first place.. Other than that -- the political posturing and faulty "public opinion" can't dissuade me from supporting the choice of voluntarily submitting to religious arbitration -- EVEN IF -- those proceedings offend the sensibilities of some or are decided contrary to the law of the state...

[d-ray657]

Good points sir.

As I see it, religious institutions have their own means of enforcement, within the context of the religious institution. A Catholic can be excommunicated for violation of the church laws. Some conservative Catholic churches deny communion to one who has divorced. I have heard of people from protestant churches being expelled for conduct not in keeping with the mores of the church.

The membership in a church and adherence to its principles is a voluntary exercise and should remain so in the eyes of the civil authorities. There would be serious constitutional problems should civil courts be called upon to enforce religious edicts. I would think the church authorities would have greater concern with the possibility that a court could review and rule upon a decision made according to religious principles - a significant interference by the state in religious doctrine.

WRT the Tenn law - if there is a conspiracy to commit terrorist acts against the state, that alone is a sufficient basis for prosecution. When the law addresses the religious nature of any organization, that is where it goes astray. In particular, I found the preamble to the legislation to be offensive.

P.S. Glad to see that you've made it through the storms.

Regards,

D-Ray

[flacaltenn]

Yup...

That preamble was offensive. Kinda like the opening round of New Crusades..

I'd give those hotheads the chance to just reiterate the law as it is. And that is that state has no interest to authorize, recognize, sanction, or support religious arbitration..

Those crazy Europeans and Canadians created all this blowback by trying to be toooo tolerant and accomodating...
Now my local hotheads to point to all the ridiculous side-effects of their actions and make a credible case for public panic..

[piece-itpete]

What I don't get is, if I sign a contract to abide by the decision of my church, and the decision isn't illegal in itself (stoning women etc), why is that contract void?

This is beyond me btw, excuse my ignorance :)

Pete

[d-ray657]

I think the U.S. is unique in the extent to which it's constitution prevents excessive entanglement between the church authorities and the state authorities. The European tradition has been to have a much more integrated line of authority in church and state: the divine right of kings, the Holy Roman Empire, the Church of England, etc. That is why I would not be concerned that we would become involved in the operation of religious arbitration the way has occurred in Europe (or Canada, which is still a commonwealth). In my view, excessive entanglement and religious bigotry are equally as dangerous.

Regards,

D-Ray

[flacaltenn]

ITPete:

I'm agreeing to the part of it where you agree to personally abide by religious arbitration. Where it gets nasty is if the STATE recognizes and sanctions that arbitration. In fact, (and D-ray nails this in the last post), all the historical damage that has been done by religion in the past (the Crusades, the Inquisition, ect) could only have been accomplished WITH THE HELP of State Power and sanction. Religion itself, is pretty much a neutered authority without some outside help..

[merrylander]

Note that said NDP government in Ontario lost the election; a) because they were a bunch of doofusses, and b) that was not their only dumb move. Ontario had been blue for so long I think that was the only reason the NDP got in in the first place. BTW the colours are reversed in Canada, Red is liberal, Blue is conservative, NDP was green I think, damed if I can remember what colour Social Credit was - nut brown probably.:p

[piece-itpete]

So, no sanctity of contract if a church is involved?

Pete

[bhunter]

ITPete:

I Religion itself, is pretty much a neutered authority without some outside help..

Everywhere but where you have an Islamic majority. I do not think it is possible to be a Muslim and have no interest in ultimately expanding Islamic power via the state apparatus. If one looks at the population growth of Muslims vis-a-vis Christians, they will be successful in controlling a lot of democracies. They do not share our concept of separation of church and state, but actively oppose it.

[flacaltenn]

bhunter:

Everywhere but where you have an Islamic majority. I do not think it is possible to be a Muslim and have no interest in ultimately expanding Islamic power via the state apparatus. If one looks at the population growth of Muslims vis-a-vis Christians, they will be successful in controlling a lot of democracies. They do not share our concept of separation of church and state, but actively oppose it.


It's kinda like the generalization that Christians have the neccessity to prosteletize. Some recruit a lot more aggressively than nothers. But I hear what you say.. Not because I'm in favor of the kinda Muslim bashing I saw in the Tenn legislation, but because we shouldn't go "overboard" like our Canadian cousins (some of them MerryLander) and just make it easier for Muslims with intent to interfere with our political and legal process. I was raised Jewish, so I could carry a lot of reasons to suspect Muslims, but I won't put that ahead of general principles. And their right to construct places of worship, and actually practice religious arbitration are not negotiable. I doubt if my Christian yahoo neighbors REALLY want govt setting precedents on limits to the 1st Amendment..

Piece--ItPete:
It's Ok man.. Don't panic, I'm not a lawyer, so I should be able to explain this pretty well!! :D (D-ray is cringing now)

A contract is enforceable because it adheres to all tenets of the "law of the land". The state will back you up on a contract, or bring you down by providing a full legal system to resolve differences. If someone owes you money from a verdict, the state will help you collect. I believe the court can also refer a civil case to the criminal court or at least reserve the right to charge someone criminally. Then you have prison in the equation. You can also agree in contract to binding arbitration in lieu of using an actual court proceeding. But (I believe), you have some means of appeal even in arbitration..

In the case of agreeing to abide by the determination of a religious panel or process such as a Sharia case or Hallakah for Jews, or a Catholic edict, the law that is used to decide the case has NOTHING to do with law sanctioned by the state. (or at least it should be separate as Canada found out). Doesn't mean that the parties aren't obligated to feel "compelled" to submit to the verdict. It just means that there is no real enforcement other than for the church, temple, mosque, to bar you from membership -- damn your soul to hell --- or have your mother vetch at you for the rest of your life.

Can't use the state to appeal, Can't use the state to collect or to carry out the punishment. OTHER THAN THAT --- carry on. Settle disputes out of court. Make decisions on who is guilty.. You're just not gonna get the keys to the jail from us...

Gotta be that way -- else we'd have to have secular judges trying to balance secular national law with biblical law. For instance, the concept of interest on a loan or even a loan are ABSENT in Sharia law. (That's why the great Jew/Arab conflict thing ((BIG)):rolleyes:) And women not having full and equal rights in ALL 3 of those religions I mentioned is simply a no-go in American civil court. FOR CRYING OUT LOUD -- there are some local churches here from the 1700's with 2 doors on the front.. One for MEN, the other for WOMEN.. My bible buckle neighbors better be careful what they ask for in terms of using the law to SUPPRESS other religions..

[d-ray657]

No cringing here; that was an excellent explanation.

There are illegal contractual provisions (for example, excluding people of particular races from employment). There are also unenforceable contractual provisions - for example a consumer credit contract with all sorts of draconian penalties hid in the fine print. Those are known as contracts of adhesion, and won't be enforced by the court. Similarly, under our legal system, there is no way that our civil courts can enforce a contractual provision that requires a citizen to do as he is directed to do by a religious authority.

Regards,

D-Ray

[flacaltenn]

Thanks officer.. It won't happen again.. I'm gonna play doctor next. ;)

Ya know... I was thinking here that a sly religious court COULD request your extradition to a favorable Sharia country for the verdict to be carried out.. That would be a prob for folks that abided by the compact.

[d-ray657]

Thanks officer.. It won't happen again.. I'm gonna play doctor next. ;)

Ya know... I was thinking here that a sly religious court COULD request your extradition to a favorable Sharia country for the verdict to be carried out.. That would be a prob for folks that abided by the compact.

That would NEVER happen. :eek:

A couple of examples of how hands off our court system is with religious questions is the decision by the goofball Fla. pastor who burned the Koran. The administration did utilize the bully pulpit, but that is IMHO an appropriate response. The goofball was expressing his bigotry, the the administration expressed the view that that behavior is not who we are as a nation, but he was not subjected to any official coercion.

A sadder example, but probably the correct decision is that the Neanderthals from Topeka had the right to express their hateful message without being subject to damages. The point has been made before that popular religious expression and popular speech are not in great need of First Amendment protection - it's the ones pushing the envelope that are at risk.

Regards,

D-Ray

[finnbow]

That would NEVER happen. :eek:

A couple of examples of how hands off our court system is with religious questions is the decision by the goofball Fla. pastor who burned the Koran. The administration did utilize the bully pulpit, but that is IMHO an appropriate response. The goofball was expressing his bigotry, the the administration expressed the view that that behavior is not who we are as a nation, but he was not subjected to any official coercion.

A sadder example, but probably the correct decision is that the Neanderthals from Topeka had the right to express their hateful message without being subject to damages. The point has been made before that popular religious expression and popular speech are not in great need of First Amendment protection - it's the ones pushing the envelope that are at risk.

Regards,

D-Ray

Beyond those examples, look at the pass the Fundamental Latter Day Saints have gotten in southern Utah and northern Arizona over the years.

[piece-itpete]

bhunter:



It's kinda like the generalization that Christians have the neccessity to prosteletize. Some recruit a lot more aggressively than nothers. But I hear what you say.. Not because I'm in favor of the kinda Muslim bashing I saw in the Tenn legislation, but because we shouldn't go "overboard" like our Canadian cousins (some of them MerryLander) and just make it easier for Muslims with intent to interfere with our political and legal process. I was raised Jewish, so I could carry a lot of reasons to suspect Muslims, but I won't put that ahead of general principles. And their right to construct places of worship, and actually practice religious arbitration are not negotiable. I doubt if my Christian yahoo neighbors REALLY want govt setting precedents on limits to the 1st Amendment..

Piece--ItPete:
It's Ok man.. Don't panic, I'm not a lawyer, so I should be able to explain this pretty well!! :D (D-ray is cringing now)

A contract is enforceable because it adheres to all tenets of the "law of the land". The state will back you up on a contract, or bring you down by providing a full legal system to resolve differences. If someone owes you money from a verdict, the state will help you collect. I believe the court can also refer a civil case to the criminal court or at least reserve the right to charge someone criminally. Then you have prison in the equation. You can also agree in contract to binding arbitration in lieu of using an actual court proceeding. But (I believe), you have some means of appeal even in arbitration..

In the case of agreeing to abide by the determination of a religious panel or process such as a Sharia case or Hallakah for Jews, or a Catholic edict, the law that is used to decide the case has NOTHING to do with law sanctioned by the state. (or at least it should be separate as Canada found out). Doesn't mean that the parties aren't obligated to feel "compelled" to submit to the verdict. It just means that there is no real enforcement other than for the church, temple, mosque, to bar you from membership -- damn your soul to hell --- or have your mother vetch at you for the rest of your life.

Can't use the state to appeal, Can't use the state to collect or to carry out the punishment. OTHER THAN THAT --- carry on. Settle disputes out of court. Make decisions on who is guilty.. You're just not gonna get the keys to the jail from us...

Gotta be that way -- else we'd have to have secular judges trying to balance secular national law with biblical law. For instance, the concept of interest on a loan or even a loan are ABSENT in Sharia law. (That's why the great Jew/Arab conflict thing ((BIG)):rolleyes:) And women not having full and equal rights in ALL 3 of those religions I mentioned is simply a no-go in American civil court. FOR CRYING OUT LOUD -- there are some local churches here from the 1700's with 2 doors on the front.. One for MEN, the other for WOMEN.. My bible buckle neighbors better be careful what they ask for in terms of using the law to SUPPRESS other religions..

No cringing here; that was an excellent explanation.

There are illegal contractual provisions (for example, excluding people of particular races from employment). There are also unenforceable contractual provisions - for example a consumer credit contract with all sorts of draconian penalties hid in the fine print. Those are known as contracts of adhesion, and won't be enforced by the court. Similarly, under our legal system, there is no way that our civil courts can enforce a contractual provision that requires a citizen to do as he is directed to do by a religious authority.

Regards,

D-Ray

To be clear - if I as a free man agree to be bound by a contract, by a decision by my church elders on something concrete - say a money issue - it is not a legally binding contract?

Pete

[flacaltenn]

Pete:

If the preacher holds your mortgage, you're bound by the contract if it's valid in civil law. If the preacher only holds your soul as collateral because you've promised to stop drinking, it's pretty much unenforceable. Likewise, if a Catholic cleric orders you to do 55 Hail Marys to repent, he can't get a court order to enforce that verdict. From the OTHER perspective of using civil law to intercede in religious law, -- As a female in the Orthodox Jewish congregation, you cannot put together a civil rights case that allows you to sit with the men in the synagogue..

Sharia seems to cover economic contractuals a lot more than the Babtist church does. Their economic agreements according to Sharia are NOT based on US civil law and therefore are alien to our court system.

A voodoo cleric that makes a doll in your image can be quite powerful in some cultures, so be careful out there.

[merrylander]

I only feel bound by my word once I give it, I don't fulfill obligations because some guy in uniform will be banging on the door if I don't.

[piece-itpete]

I'm getting a feeling of some squirming here! Although I agree with Rob :D

If I agreet o binding arbitration on concrete issues, with my church trustees as the arbitrators, that is different how exactly than an arbitration company?

Pete

[d-ray657]

I'm getting a feeling of some squirming here! Although I agree with Rob :D

If I agreet o binding arbitration on concrete issues, with my church trustees as the arbitrators, that is different how exactly than an arbitration company?

Pete

Because, if the court is called upon to enforce the arbitration decision by the church, it must give some deference to the decision-maker, but one point of review that requires less deference is whether the arbitrator applied the correct rule of law. If the arbitrator resolved the dispute on religious principles, the power of the state can't be used to enforce those religious principles. If you are saying that you want a religious arbitration to stand on the same footing as a commercial arbitration, you are implicitly saying that if the matter is to be enforced in the courts, you are submitting the religious determination to the courts for review. That is a result that I would would not be comfortable with, and I doubt you would either.

Regards,

D-Ray

[piece-itpete]

In some old fashioned church, a property dispute has arisen, and the folks have agreed to abide by the decision of the elders.

The loser won't perform. That has no validity?

Pete

[d-ray657]

In some old fashioned church, a property dispute has arisen, and the folks have agreed to abide by the decision of the elders.

The loser won't perform. That has no validity?

Pete

Mixing apples and oranges Pete. An arbitration proceeding is when a third, supposedly neutral party, is called in to resolve a dispute between two parties. In your example, the members of an organization have agreed to respect the authority of a group within the organization. The state has an interest in resolving the issue of title to property. Without research, I could not say whether a civil authority would use its coercive power to evict one of two groups claiming a religious basis for control of the property. My answer to that is a classic legal opinion: "it depends."

Regards,

D-Ray

[piece-itpete]

I don't know enough. But what I'm having a hard time with is, all things being equal, a church should not be treated differently than anyone or thing else.

Pete

[noonereal]

I don't know enough. But what I'm having a hard time with is, all things being equal, a church should not be treated differently than anyone or thing else.

Pete

I don't know.

I guess the idea is that church has great social value. If it does (I am not arguing if it does or doesn't) I have no problem with it being treated differently.

(maybe a little off subject)

[merrylander]

I don't know.

I guess the idea is that church has great social value. If it does (I am not arguing if it does or doesn't) I have no problem with it being treated differently.

In my experience it is where all the hypocrits gather once a week to recharge.

[piece-itpete]

BAM! ROTFLMAO! Rob, you get the cynicism award this week :D

Pete

[d-ray657]

I don't know enough. But what I'm having a hard time with is, all things being equal, a church should not be treated differently than anyone or thing else.

Pete

There are a line of cases discussing "excessive entanglement" between the government and religion. The way any arbitration decision in the private sector would be treated would be that if either party goes to court to enforce the arbitration award, the court will conduct a limited review of the award, including a review of the law applied to the decision. If the law applied were religious doctrine, the court would be in the position of A) enforcing a religious doctrine or B) rejecting a particular religious doctrine. Each of those results creates excessive entanglement between the state and religion. In other words, the First Amendment prevents the church from being treated the same way as anyone else.

For the same reason, however, anyone who chooses to voluntarily submit a dispute to religious arbitration and voluntarily (or out of a sense of honor or obligation) comply, the state will not interfere with that choice.


Regards,

D-Ray

[piece-itpete]

I fully understand that D and agree they have NO PLACE in that at all :)

But I do know that the courts get involved over church schisms (who owns what?) etc, and am talking about what would be secular matters from the courts' POV.

Pete

[finnbow]

In my experience it is where all the hypocrits gather once a week to recharge.

I bow before you, sir. This is easily the post of the month (without breaking a sweat, might I add).

[merrylander]

Yeah we should treat the churches just like everyone else - tax them.

[noonereal]

In my experience it is where all the hypocrits gather once a week to recharge.

hard to argue but not many among us are not hypocrites in some fashion

[piece-itpete]

Well said.

Pete

[d-ray657]

What's the equivalent of Partisan when we speak of fealty to a particular dehomiation: denominasan? In any event, I will speak for my experience in the Methodist Church. I grew up a Methodist, and I have to say that I have seldom witnessed a "holier than thou" attitude among members. As a matter of fact, each week we join in a confession of our shortcomings. What I have seen is plenty of warmth and acceptance of one whose attendance is sporadic, of different races, of different economic backgrounds, and of different faith backgrounds. I have seen a youth group whose annual trip is a service project somewhere. Whatever hypocracy I have seen is individual. I can acknowledge my own and guess about others'.

Regards,

D-Ray

[merrylander]

I grew up in a Union church simply because the village was too small for all the protestant denominations to afford individual places of worship. We did not even have our own clergyman but 'borrowed' the United Church minister from across the river.

In Canada the United church came about by a merger of the Methodists and about 80 - 90 percent of the Presbyterians. My parents were very active in the church, possibly to the point that the expression "the willing horse does all the work" originated there. Heck, my copy of the Bible is inscribed "For perfect attendance".

My experience since those days has disabused me of any great love or respect for "Organized" religion as the organization seems to have become more important than the message. So we describe ourselves merely as christians, without the capital C. BTW Florence was raised in the Roman Catholic church but at the time of our marriage expressed no desire for a church wedding, so we had a civil service.