Judge orders use of Islamic law in Tampa lawsuit over mosque leadership

We've been told it couldn't happen here like it has in the UK.

And legislators are drafting laws to prevent the use of sharia law in U.S. Courts.

Looks like they better hurry up!

source

TAMPA — The question of what law applies in any Florida courtroom usually comes down to two choices: federal or state.

But Hillsborough Circuit Judge Richard Nielsen is being attacked by conservative bloggers after he ruled in a lawsuit March 3 that, to resolve one crucial issue in the case, he will consult a different source.

"This case," the judge wrote, "will proceed under Ecclesiastical Islamic Law."

72 on this one.

reply to post by centurion1211


It's difficult to tell from the article alone, but it sounds like the Judge is just enforcing the terms of the arbitration clause found in their agreements. The fact that the parties selected Sharia law as the rules for conduct during arbitration is no different from other contracting parties selecting rules established by similar domestic or international private arbitration bodies who set up such rules.

Moreover, the article does say:

The judge said he would use Islamic law to decide only the legitimacy of arbitration.

"What law would we be applying (at) trial?" Thanasides asked.

"That trial would be civil law," the judge said. "Florida law."

The slope is getting slippery.

All they need is to get their foot in the door to begin establishing precedent in the lower courts. Case by case, state by state the foundation is being laid.

Sharia is much closer than we think. Just ask the Brits.

Originally posted by loam
reply to post by centurion1211

 

It's difficult to tell from the article alone, but it sounds like the Judge is just enforcing the terms of the arbitration clause found in their agreements. The fact that the parties selected Sharia law as the rules for conduct during arbitration is no different from other contracting parties selecting rules established by similar domestic or international private arbitration bodies who set up such rules.

Moreover, the article does say:

The judge said he would use Islamic law to decide only the legitimacy of arbitration.

"What law would we be applying (at) trial?" Thanasides asked.

"That trial would be civil law," the judge said. "Florida law."

edit on 22-3-2011 by loam because: (no reason given)

Slippery slope being created no matter how else you look at it.

Slippery slope ...

reply to post by centurion1211


Explanation: Uhmmm???

From source linked above in the OP....

The judge said he would use Islamic law to decide only the legitimacy of arbitration.

"What law would we be applying (at) trial?" Thanasides asked.

"That trial would be civil law," the judge said. "Florida law."

AND...

Markus Wagner, a professor of international law at the University of Miami School of Law, said it is not improper for a judge to use foreign law in an arbitration if all the parties agree to do so.

"If we both sign a contract agreeing to be governed by German law, then Florida courts will interpret German law," he said.

The contract was agreed to UNDER Sharia law and here is the WHY of that...

An a'lim, a Muslim scholar trained in Islam and Islamic law, said the parties agreed to his arbitration if the lawsuit against individual trustees was dismissed. This occurred, though the ousted trustees then re-filed against the mosque itself.

Personal Disclosure: Clearly the plaintiffs in this case are trying to squirm out off the deal they made with the a'lim.... under Sharia Law. They have basically appealed to a higher court [i.e. the State] by refiling agaisnt the mosque which if everything was kosher [] then they would be supporting the Judge and not stating the following...

"The mosque believes wholeheartedly in the Koran and its teachings," Thanasides said Monday. "They certainly follow Islamic law in connection with their spiritual endeavors. But with respect to secular endeavors, they believe Florida law should apply in Florida courts."

And here is the why of that...

Thanasides said the mosque's directors would have to appoint a representative to participate in any legally binding arbitration.

That, he said, didn't happen because the board was never notified of the arbitration.

Thanasides said the arbitration was not binding on the mosque for a litany of reasons. He said the mosque was not properly notified of the proceeding and did not participate. He questioned whether the a'lim had proper standing to decide anything.

He also questioned whether the arbitration actually took place, noting two participants the a'lim said were present were overseas at the time.

And this has all happened because ...

The a'lim ruled in a Dec. 28 decision that the ex-trustees were ousted improperly.

The ex-trustees then asked Judge Nielsen to enforce the arbitration award, which could wrest control of the money from the mosque's current leaders.

And therefor the judge does have a VALID question right here...

"The next question is whether the proper procedures have occurred. … Did they properly invoke the use of … an Islamic judge or an Islamic A'lim?"

Its still under state law as its an INTERPRETATION of a contract MADE under Sharia Law!

Originally posted by centurion1211

Originally posted by loam
reply to post by centurion1211

 

It's difficult to tell from the article alone, but it sounds like the Judge is just enforcing the terms of the arbitration clause found in their agreements. The fact that the parties selected Sharia law as the rules for conduct during arbitration is no different from other contracting parties selecting rules established by similar domestic or international private arbitration bodies who set up such rules.

Moreover, the article does say:

The judge said he would use Islamic law to decide only the legitimacy of arbitration.

"What law would we be applying (at) trial?" Thanasides asked.

"That trial would be civil law," the judge said. "Florida law."

edit on 22-3-2011 by loam because: (no reason given)

Slippery slope being created no matter how else you look at it.

Slippery slope ...

edit on 3/22/2011 by centurion1211 because: (no reason given)

If the parties to the contract had chosen "coin-toss" law to govern disputes, e.g., in the event of a dispute the winner of a coin toss prevails, would anyone be nutso enough to talk about the "slippery slope of coin-toss law? Or maybe you prefer that the law take away the right to set your own rules in a contract.

Originally posted by 4nsicphd
If the parties to the contract had chosen "coin-toss" law to govern disputes, e.g., in the event of a dispute the winner of a coin toss prevails, would anyone be nutso enough to talk about the "slippery slope of coin-toss law? Or maybe you prefer that the law take away the right to set your own rules in a contract.

And when the first case comes up - as in the UK - where muslims claim that the way they treat a muslim female in a mosque in the U.S. should be governed by sharia and not U.S. law, what will you say?

reply to post by centurion1211

Originally posted by centurion1211
Slippery slope being created no matter how else you look at it.

Slippery slope ...

I'm sorry, centurion1211, I completely disagree. I think you know my politics, so hear me out...

Under most circumstances, private parties should be able to come to whatever contractual agreements they wish. That is all that was done here. They simply selected Sharia Law to govern their relationships.

You and I could contract similarly and choose the laws of Ancient Rome to govern our relationship. It might sound crazy, but would be perfectly acceptable.

I have no wish for the state or federal government to further restrict how I may obligate myself and others by contract. If there is a meeting of the minds between willing participants, then I want the state to do nothing more than enforce our arrangements.

reply to post by loam


But if I'm proven right over time and we start to see sharia crop up in other cases - especially any that refer back to this one, an "oops, I was wrong" from you will be far too little and too late.

reply to post by centurion1211


That is not how contract law functions.

Show me the use of Sharia law in another context, and I'm likely right there with you.

Originally posted by loam
reply to post by centurion1211

 

That is not how contract law functions.

Show me the use of Sharia law in another context, and I'm likely right there with you.

Ok. Try this on for size.

A judge says it was OK for a muslim man to force his wife to have non-consensual sex because forcing a woman to submit to that was part of the man's beliefs - even though such a thing IS outlawed in the U.S.

Fortunately, an appeals court overruled the first judge.

source

The record reflects that plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old. The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant’s employment in this country as an accountant....
[Long discussion of the wife’s allegations of abuse, which included several instances of nonconsensual sex as well as other abuse, omitted for space reasons. –EV]

Upon their return to the apartment, defendant forced plaintiff to have sex with him while she cried. Plaintiff testified that defendant always told her

"this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do."

and

While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:

"This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited."

An example of sharia law overriding U.S. law.

reply to post by centurion1211

Originally posted by centurion1211
An example of sharia law overriding U.S. law.

Actually, no, because as you point out, the lower court was overruled.

Moreover, the issue wasn't even about Sharia law. The issue in the case was whether the husband had the requisite criminal intent.

The trial judge found as a fact that defendant committed conduct that constituted a sexual assault and criminal sexual contact, but that defendant did not have the requisite criminal intent in doing so. His conclusion in this respect cannot be sustained. N.J.S.A. 2C:2-2c(3) establishes the principle that criminal statutes that do not designate a specific culpability requirement should be construed as requiring knowing conduct.

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist . . . .

[N.J.S.A. 2C:2-2b(2).]

Defendant's conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.

So everything was really decided under NJ statutory law.

You need to find another example.

reply to post by loam


Don't have to find another example.

If it had been a U.S. couple the judge would have found criminal intent. The judge stated he did not find criminal intent because the man was acting under his belief system - sharia - even though that belief would not hold up for U.S. citizens.

And the fact that it was overruled has no bearing on this argument. It just means - for now - that saner judgement prevailed in the end.

After saying you'd be "right with me" if I found an example of sharia trumping U.S. law outside of this contract dispute, you are reneging on that? So, I (quickly) found one. In other words, it's OK with you if someone gets away with assault and battery in the U.S. by using a sharia defense?

Now you appear to be be doing nothing more than attempting to save face after putting yourself out on a logical limb. Somehow I expected more than that from you based on your previous posts.

reply to post by centurion1211


centurion1211, I think you misunderstood me. I wasn't attempting to insult you.

Originally posted by centurion1211
If it had been a U.S. couple the judge would have found criminal intent.

You don't know that. In fact, based upon the record, that judge seems likely to have produced a similar result for anyone who could have reasonably argued he did not have the specific intent.

Moreover, the judge DID find him guilty of harassment and assault, where "intent" was presumably not an element of those offenses.

The judge found from his review of the evidence that plaintiff had proven by a preponderance of the evidence that defendant had engaged in harassment, pursuant to N.J.S.A. 2C:33-4b and c, and assault.

Originally posted by centurion1211
After saying you'd be "right with me" if I found an example of sharia trumping U.S. law outside of this contract dispute, you are reneging on that?

But this isn't an example of it. Don't let blogs lead you by the nose on this. This case was about the appropriate definition of "intent" in the context of certain statutorily defined offenses. Frankly, that kind of analysis (and bizarre evidence of it) happens all of the time in the courts. This is plain vanilla.

In the absence of anything to the contrary, I have to assume the fact that Muslims were involved is the only reason the judge looked to Islamic law to understand the man's intent.

Interesting to note, the case says:

At the conclusion of this testimony, in response to the judge's questions, the Imam testified regarding Islamic law as it relates to sexual behavior. The Imam confirmed that a wife must comply with her husband's sexual demands, because the husband is prohibited from obtaining sexual satisfaction elsewhere. However, a husband was forbidden to approach his wife "like any animal." The Imam did not definitively answer whether, under Islamic law, a husband must stop his advances if his wife said "no."

Source.

So what you have is a case that hinged upon the notion that "specific intent" was required for the offense. The appellate court thought otherwise and reversed based upon the notion that general intent was all that was required under NJ law.

Originally posted by centurion1211
Now you appear to be be doing nothing more than attempting to save face after putting yourself out on a logical limb. Somehow I expected more than that from you based on your previous posts.

I hope you don't really believe that.

I would have thought my posting history would have given me the benefit of the doubt.

I'm really sorry you feel that way. I'm just calling it like I see it.

I am as patriotic as you will find anyone. true blue, dyed in the wool, 1776 American patriot.

That aside, there is nothing really that odd about this, other than anything dealing with Muslims is sensationalised. To be honest, THAT is unAmerican. Our culture is based on a "live and let live" philosophy (despite the enormous legal burden we all bear). If everytime a muslim person farts it creates a mudstorm, what does that say about how much Americans value their own freedoms? "Divide and conquer" is working all to well. It is making people forget that, regardless of all other labels, we are all human.

That aside, do we have a dispute about using Talmudic or Ecclesiastical law? Or binding arbitration? it is the exact same thing, and merely a function o fthe tax exempt status that religious institutions enjoy. They are required to have their own bylaws, etc, to ensure that they act within the bounds of our constitution. For example, satanists cannot sacrifice virgins, as murder is a violation of our constitutional law.

But when their is a property dispute involving a church it is almost always handled using the laws of the church, which are crafted within the framework of our own constitution. Look at some of the Episcopalian blow ups over the years, with the Church having to fight off claims of their church buildings when priests went rogue. They used Ecclesiastical law in those cases.

In short, this is a complete non issue unless you are a copy editor trying to sell issues and ad space.

reply to post by bigfatfurrytexan


We are in complete agreement.

It's nice to see some arguments are not too nuanced.

The discussion on this board sort of reminds me of south park characters. SHARIAH LAW!... SLIPPERY SLOPED!... (Insert reasonable response here)... but, but SLIPPERY SLOPE! SLIPPERY SLOPE! ... RABBLE RABBLE RABBLE.

This is just another fear tactic being deployed by the Republicans. (Dems are guilty at times as well)

Be afraid....very afraid! Scary, brown-skinned people may take over your corrupt courts to impose radical jihadist Sharia communist law! The Nazi's will show up, and Mao will bring the veggie tray!

I say that in an attempt to be humorous, but I also say it to show the ridiculous way in which fear is spread to the masses. There is nothing to worry about and we will be fine as long as the constitution stays intact, kinda.

Originally posted by renegadeloser
The discussion on this board sort of reminds me of south park characters. SHARIAH LAW!... SLIPPERY SLOPED!... (Insert reasonable response here)... but, but SLIPPERY SLOPE! SLIPPERY SLOPE! ... RABBLE RABBLE RABBLE.

You always have a choice - in this country - on what to watch or read.

If debating the issues of the world and the day are not for you, sounds like maybe ATS is not the choice for you ...