Sunday, August 21, 2011

Use fire to fight fire

I gather there are some concerns, particularly among conservatives, about the implementation of sharia law* in the United States. I don’t know how reasonable those concerns are, although as a woman I tend to feel that any possibility of such a thing happening should be viewed with great alarm.

There is, however, a simple way to make sure sharia law is not implemented in this country: pass the Equal Rights Amendment. Not all sharia law has to do with the role of women but a fair amount of it does. the Equal Rights Amendment would insure that the aspects of sharia law that enshrine different rights for men and women could never be implemented. Losing the "sweetener" of being able to treat women like second-class citizens should make the prospect of sharia law much less enticing to many who might otherwise be willing to condone it.


*I do not have a nice, clean summary of sharia law to offer as a link. The Wikipedia entries on sharia law and on women in Islam read - as one commenter put it - like a pro-Islam “tourist brochure”.


E Hines said...

There is, however, a simple way to make sure sharia law is not implemented in this country: pass the Equal Rights Amendment.

I disagree. We already have equal rights: from the Declaration of Independence, which is the principles statement of the American social contract: We hold these truths to be self-evident, that all men are created equal....

From the 10th edition (1792) of Johnson's Dictionary: MAN: 1. Human being.

From the 14th Amendment of our Constitution: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....

The underlying philosophy of equality vis-a-vis our laws also is enshrined above the main entrance of the Supreme Court Building: "Equal Protection Under Law" not "Equal Protection Under the Law."

One of the reasons the ERA failed is that it's already covered.

In the end, we need to enforce the existing Constitution, subordinate laws, and our principles. It'll do no good to ratify another Amendment, or pass another law, simply to add it to the list currently being ignored.

If we want to prevent Sharia Law from creeping into our system, we need to impeach judges who use it in their deliberations, since doing so is a violation of their oath of office. The Federal judge's oath is this (I can't speak to the 50 States' several State judge oaths): I, [NAME], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

As an aside, note that evil reference to God in the oath. Where it belongs, among other places.

More to the point, there's nothing in that oath about supporting and defending, or incorporating, any other system that a judge might find convenient--foreign law, religious law of any origin, and so on. He's sworn to uphold the Constitution. Period.

And no honorable man, nor even a purely self-interested one, is going to want anything other than true equality for women. Honor from our statement of principles and our Constitution. Self-interest from the benefits of that equality: a woman who is my chattel, or even "merely" my subordinate, cannot help me get through life; I lose the full benefit of her separate outlook, her separate wisdom, the full force of her love (or her hatred, if it comes to that); I'll only have the subordinate's self-interested inputs, which are geared to maximizing her own welfare rather than, and often at the expense of, our joint welfare.

Eric Hines

Elise said...

I understand the argument that the Equal Rights Amendment is already covered (although I don't believe that's one of the reasons it failed). However, it's perfectly clear that the 14th Amendment was never intended to include women; if it had been we wouldn't have needed a later amendment giving women the vote.

And no honorable man, nor even a purely self-interested one, is going to want anything other than true equality for women.

There are a lot of dishonorable men in the world. (Women, too.) I'm more comfortable with the realistic view of the world so admirably summed up by David Mamet:

The Constitution, written by men with some experience of actual government, assumes that the chief executive will work to be king, the Parliament will scheme to sell off the silverware, and the judiciary will consider itself Olympian and do everything it can to much improve (destroy) the work of the other two branches.

As for self-interest, there are a lot of men who act as if they believe quite firmly that maintaining women as second-class citizens or even chattel suits their self-interest quite nicely. Whole countries of them, in fact.

E Hines said...

I've never agreed that we needed the 19th Amendment, either, nor should we have had to fight the Civil War in order to enforce the Constitution.

But writing new law--whether fundamental, through Amendments, or legislative--seems to me a useless enterprise, when that new law is simply an attempt to do what existing law has not--and which failure stems not from bad law, but from not enforcing that prior law.

Sometimes we do need to fight that war, in the realization, and sometimes we do need to pass a 19th Amendment.

But the case of Sharia Law (and ERA) I think is better handled by hammering those Olympian judges and reminding them for whom they work.

Eric Hines

Grim said...

Without passing judgment on the ERA, I would note that there is already a country with sharia and also an Equal Rights for Women clause in its constitution: Afghanistan.

Ultimately, the law and the constitution won't save you if nobody will fight for you. The difference between laws that are just words and laws that are laws is who is willing to fight for it.

I don't think sharia is any danger of becoming US law because of the 1st Amendment. Except in cases where parties to a contract agree in advance to be bound by some school of sharia, it has no obvious entry point to our system of justice.

E Hines said...

I don't think sharia is any danger of becoming US law because of the 1st Amendment.

See, for instance, the New Jersey appellate court case is S.D. v. M.J.R. (NJ Superior Court Appellate Division), Docket No. A-6107-08T26107-08T2, which overturned a Superior Court of New Jersey, Chancery Division, Family Part, Hudson County case, Docket No. is FV-09-1792-09. In the trial, a judge ruled that marital rape is perfectly fine behavior because the rapist-husband claimed his Sharia Law beliefs said it was. The New Jersey Court system has made the trial case unavailable to the public in order to protect the victim wife's identity.

The question never should have gotten through a trial court to appellate. The point of entry is trial judges failing their oaths.

Eric Hines

Grim said...

OK, I read up on that case. There are two things of note about it.

1) The judge's ruling wasn't that the husband had a right to enforce his wife. The judge also didn't rule that sharia was an acceptable legal standard. The ruling was that the husband, because he came from a culture that recognized a husband as having the right to enforce his wife, lacked the "criminal intent" that the NJ statute required.

This sounds like a problem with the law, not a problem with the judge. I'll explain.

Laws requiring the state to prove criminal intent always run into the obvious difficulty of actually having to prove intent. Unlike actions, intent is invisible. It's never going to be easy to prove beyond a reasonable doubt what my intentions are.

In this case, the statute specifically requires the state to prove criminal intent. The judge ruled that they hadn't, because the defendant's understanding of what was right and proper included what he was doing at the time he committed the crime.

That suggests that the NJ law needs to be rewritten to remove intent; and that we should take some pains to educate immigrants about this aspect of our culture, to ensure that this defense isn't available.

2) The decision, as you note, was reversed on appeal. Having looked up the appellate judgment, I find that it isn't very convincing by comparison. It essentially argues that "he should have known it was wrong," which assumes a lot about what people can be expected "to know" about moral questions when they come from cultures that have very different moral views.

In other words, it sounds like the first judge honestly enforced the statute as it was written -- which is exactly in keeping with his oath as a judge. The result is bad because the law is bad.

The judgment in no way offers sharia an entry point, though. It was not a ruling that the legal standards of sharia were acceptable or applicable. It was a ruling, requires by the statute, about the defendant's intent.

E Hines said...

You're mostly right about the intent aspect of the case and of NJ law generally. However, the only way the judge could have found lack of intent in this case is either through insanity--the man was incapable of forming intent of any sort--which the judge did not find, or by giving credence to Sharia in the man's "judgment" of proper treatment of another human being. This statement, for instance, is a part of the court record: "this is according to our religion. You are my wife, I c[an] do anything to you."

The appellate ruling says, in part (one version is at ) N.J.S.A. 2C:14-2c provides that "[a]n actor is guilty of sexual assault if he commits an act of sexual penetration with another person" under several circumstances, including when "[t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury." N.J.S.A. 2C:14-2c(1). To establish physical force for the purposes of N.J.S.A. 2C:14-2, the plaintiff does not have to prove force in addition to "that necessary for penetration so long as the penetration was accomplished 'in the absence of what a reasonable person would believe to be affirmative and freely-given permission.'"


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 . . . .

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.
And the ruling cites additional NJ law and definitions. For good or ill, the rules involving criminal intent are different for domestic crimes than they are with "ordinary" crimes.

Finally, the meme that the man was acting in accordance with his cultural imperative is irrelevant. He wasn't in Morocco when he did these things. He was in the United States. Our house. Our rules.

Eric Hines

Grim said...

I think the court did apply our rule -- New Jersey's -- according to the judge's understanding of what the statute required him to do. Indeed, the proof that this is not an entry point for sharia is this: even if the judgment had stood no one could appeal to it as a precedent, because simply knowing about the case is adequate evidence that you did know that you were committing a crime under New Jersey law.

The first amendment would clearly prohibit a defense based on sharia law; but it also protects many forms of cultural expression.

Thus, a generic defense (i.e., not necessarily to rape charges; it could be to any criminal offense) framed as 'my religious law trumps your law,' will lose on 1A grounds. However, a generic defense framed along the lines of 'your law is an unconstitutional infringement of my religious freedom and/or freedom of cultural expression' may sometimes succeed. (Sikhs, for example, frequently win at least exceptions for themselves in court on this ground.)

What would be necessary to fix that is not the ERA, whose language speaks only to acts of the United States or the several states. You would need something that spoke more broadly to the kind of culture that is acceptable within the United States. That sounds like a precedent that could entail some very negative effects, in addition to the positive effects we would like to achieve.

E Hines said...

The claim by the man that his religion allowed him to treat his wife in that way, and the trial court's acceptance of that claim in not finding a criminal act in his behavior, are exactly what make the trial court the entry point for Sharia. That it proved not so effective at the appellate level doesn't eliminate the entry.The generic defense should have failed at the trial level.

As to the larger point, and to bring the thread back to OP, you're right. And it's why a law to mandate this or that cultural milieu is doomed to failure. The only way to preserve a culture is through education in that culture's schools,done far more effectively than our current school systems do. This will still be imperfect, and it should be, unless we're going to stop immigration altogether--and that would be national suicide. The new citizens are as entitled to their opinions as are the "established" citizens, and this necessarily produces evolutionary (at least) change. And that's all to the good. But slow change generally is going to be both better and more permanent than rapid change.

Eric Hines

cokaygne said...

In the final analysis the constitution is a consensus. It is not just the consensus of 5 SCOTUS judges either. With some better understanding about how it would affect regulation of abortion, the ERA might just pass now because its language is a consensus.

Elise said...

With some better understanding about how it would affect regulation of abortion, the ERA might just pass now because its language is a consensus.

I'm not entirely sure about that. I think there would be a lot of concern about what it would mean for divorce and child custody; issues like women in combat; and the possibility of more regulations in the affirmative action vein.