Global News: November 2010 Archives

NewsRealBlog has a piece by David Yerushalmi titled "4 Rebuttals to Critics of Oklahoma's Anti-Sharia Law," a defense of the thinking behind the constitutional amendment adopted by an overwhelming majority of Oklahoma voters on November 2 as State Question 755.

Yerushalmi says that SQ 755 was poorly drafted (and explains why in detail), but the purposes of the amendment are legitimate, and he sets out to rebut four claims by critics: (1) that SQ 755 is a response to an irrational fear of something that poses no realistic threat to Oklahomans; (2) that the amendment was "driven only by a fear-mongering anti-Islamic narrative," a "cottage industry of Islamophobia"; (3) that outlawing sharia endangers other religious courts; (4) that "sharia" has no concrete meaning, making a ban meaningless.

Especially valuable is his explanation of the mechanisms by which sharia can become a real threat to American liberties under existing law:

Specifically, there are at least three ways for sharia to find its way into our courts and legal system in ways which would deprive Oklahomans of their federal and state constitutional liberties: comity, choice of law issues, and choice of forum/venue determinations. We will touch upon each of these in brief.

In dealing with comity, Yerushalmi explains why legislative action against sharia matters:

State courts are asked to recognize and enforce foreign judgments and private arbitral awards all of the time. This procedure for recognizing another juridical body's decision as binding is called granting comity to the foreign judgment. For our purposes, a private arbitral award is like a foreign judgment because it does not arise from a state court action.

Granting comity to a foreign judgment is mostly a matter of state law. And, almost all state and federal courts will grant comity unless the recognition of the foreign judgment would violate some important public policy of the state. This doctrine is called the Void As Against Public Policy Rule and has a long and pedigreed history....

Unfortunately, because state legislatures have not been explicit about what their public policy is relative to sharia, the courts and the parties litigating in those courts are left to their own devices to first know what sharia is, and second, to understand that granting a sharia judgment comity is ipso facto offensive to our way of life and the principles underlying our constitutional republic.

And, indeed empirically, we find published judicial opinions which accept comity for sharia-based foreign judgments and arbitral awards. And these published judicial opinions quite obviously only represent the tip of the iceberg since courts render these kinds of judgments all of the time through unpublished orders rather than published opinions.

While there are also published opinions where the courts have rejected the application for comity precisely on the grounds that sharia is offensive to Due Process and Equal Protection, the courts have ended up all over the map precisely because the state legislatures have not taken the time to carefully articulate their respective public policies on the recognition of sharia-based judgments. That the people of Oklahoma have chosen to do so, even if clumsily, is hardly grounds for criticism.

Yerushalmi has drafted a model uniform act called "American Laws for American Courts" and offers a free CLE course (an online, 40-minute, narrated PowerPoint) on the proposal and the problem it seeks to address.

The draft law appears to address the heart of the matter: We don't want the state's police power used to enforce judgments made under any system of law that does not include all the rights, privileges, and liberties guaranteed under our Federal and state constitutions. While waiting for the federal courts to address SQ 755, our Oklahoma legislators should consider passing the American Laws for American Courts act in some form as a substitute if SQ 755 is overturned or a clarification otherwise.

During the all-too-brief Thanksgiving weekend, I actually did unwind a bit. We had Thanksgiving dinner at my parents' house, along with my sister and her family, and we celebrated my birthday (belated) and my dad's (early). I took the 14-year-old to the Friday night late showing of Harry Potter and the Deathly Hallows: Part 1. The whole family watched The Sound of Music. We played a game of Clue: While everyone was getting very close to a solution, the four-year-old and I got there first: Miss Peacock, in the theater, with the dumbbell.

One of my birthday gifts was Dancing under the Red Star by Karl Tobien. It's the story of the author's mother, Margaret Werner Tobien and is told as a first-person narrative. I started reading it Thanksgiving night and finished it late Friday afternoon. It is a powerful but accessible story about life in Stalin's USSR and the experience of an American citizen who found herself a political prisoner, a resident of the gulag for 10 years.

Margaret "Maidie" Werner was born in Detroit in 1921. In 1932, her father, a committed socialist, decided to move his family of three to Gorky (Nizhni Novgorod) as part of a large group sent by the Ford Motor Company to help set up an automobile factory there. In 1938, Maidie's father was arrested as an enemy of the state, taken from his home in front of his wife and daughter, never to be seen again. Maidie and her mother survived as best they could, dealing with the privations of the war. In late 1945, Maidie herself was carried off by the NKVD, charged with espionage for Britain (because she had asked two British airmen to find out what they could about her father's fate), treason (because she had asked them to help her get out of the country), and propaganda against the state (because she told friends what life had been like in America). After months of interrogation at Gorky's prison and at Lubyanka, she was sentenced to 10 years hard labor and five years internal exile. During her time in the camps, she is assigned to a "cultural brigade" -- a troupe performing theater and dance for the prisoners of her own camp and nearby camps. Eventually, she makes her way to East Germany, escapes to the west (before the Berlin Wall), and returns to the United States, almost 30 years after she left.

The book is vivid with detail about daily life -- not only the hardships, but also the small mercies that kept hope alive and the ways prisoners found to make the best of their bleak circumstances. There are especially touching details -- Maidie's loud refusal to denounce her father in school; how people in the towns where the prison train stopped en route to the death camps would push cigarettes, candy, bread, fruit, and sausages into the ventilation slats for the prisoners; how Maidie managed to meet her mother very briefly, near the camp, in extremely unpleasant surroundings. The betrayals are striking, too. The Soviet system rewarded treachery. "Under the spreading chestnut tree, I sold you, and you sold me."

I was fascinated by this book, and I recommend it. It would be suitable for teens and older; while it touches on some mature subject matter, it does so in a delicate way (as you would expect from a story told by a septuagenarian lady born in the 1920s).

MORE:

Reviews on Amazon, including a detailed synopsis
Reviewed on Blogful of Books
Reviewed on Small World Reads
Reviewed on Curmudgeonalia