Alabama outlaws "Foreign Law"

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Alabama outlaws "Foreign Law"

Post by editor » Wed Nov 12, 2014 9:20 am

The following article puzzles me.

The State of Alabama has passed a law called the American and Alabama Laws and Alabama Courts Amendment, which purportedly prohibits state courts from applying...
...any law, rule or legal code system used outside of the United States or by any other people, group or culture different from the people of the United States or the States of Alabama.
Students of jural societies are familiar with the concept of Conflict of Laws, which formally recognizes that a person who is not obligated by a certain law, or subject to the jurisdiction of a given court, has rights which would not be afforded to a person who is subject.

Here's an example of Conflict of Law.
Remember when the united states of America had a national 55mph speed limit? That's what people thought, anyway, but it wasn't true. Congress passed a 55mph speed limit which effected the United States (you know, that 10-square-mile area known as District of Columbia, as well as Puerto Rico, Guam, and the U.S. Virgin Islands), and submitted it to the States for their approval. Further, the feds told the States that if they did not approve it, they would have their federal highway funds cut off. Wyoming told the Feds to go screw themselves.

Now, suppose you were back in that time, and you were driving 70mph in Wyoming, and you were arrested by the FBI for speeding.

When they take you into court, you argue Conflict of Law on two counts:
  1. You were in Wyoming, which never ratified the law.
  2. The FBI is a federal police force, which has no jurisdiction over traffic offenses.
Here's another example: Let's suppose a State Cop from California arrests you in Colorado for possession of marijuana. Does he have a case? This, too, is Conflict of Law.

This is being styled as an Anti-Sharia-Law statute, and that seems to be how it was sold to the public. However, it is potentially much more dangerous than that. Is this an opening salvo in government's attempt to codify a one-style-fits-all legal standing for everyone? I don't know. What do you think? Here's the article:
Alabama Passes "No Sharia" Amendment to State Constitution – Part of Pro-American Election Day Tsunami
by Rick Wells

Original link: http://wp.me/p2Jq2P-n1E

Alabama is a beautiful state with a population that is largely rooted in common sense and patriotism, "clinging bitterly" to their traditional American values. That might be seen as a negative in some areas of the country, particularly in the Northeast, DC, or West Coast liberal cesspools, but in Alabama, it's a source of pride. They still understand what it means to be an American, what representative government is and they reject the socialism, the political correctness and nanny state that many of the "enlightened" among us have chosen to embrace.

In the elections of Tuesday, in which the Republican victories issued a cease and desist order to the socialist fundamental transformation, the people of Alabama also stood up for the sanctity of America's judicial system and against the trend to internationalize or subdivide our laws based upon the views of those subject to them.

The citizens of Alabama spoke by passing a constitutional amendment which prohibits the use of any foreign laws in state courts. The amendment was sponsored by Republican state Sen. Gerald Allen, a Baptist deacon.

It is similar in content to a measure he proposed in 2011, with one major exception. In its earlier incarnation, the proposed amendment specifically banned the use of Sharia Law, a flaw which was deemed to have made it unconstitutional and kept it off of the ballot.

This time around, there was no specific mention of any particular law, with all foreign laws being equal offenders. The amendment called the "American and Alabama Laws and Alabama Courts Amendment," prohibits state courts from applying "any law, rule or legal code system used outside of the United States or by any other people, group or culture different from the people of the United States or the States of Alabama."

Having removed the specific references to Islam, the amendment was placed on the ballot and the voters approved. Allen said in an interview on Alabama Public Radio, "We as a legislature felt like it's important to bring this before the people of Alabama to let their voice be heard because we're living in a changing world."

We also have a "president" who is seeking to radically change America at hyper speed. Preemptive responses to the gathering threat are a huge part of the mosaic of actions that will help to prevent the destruction from within by the socialists in power. Nicely done, Alabama.

Rick Wells is a conservative writer who recognizes that our nation, our Constitution and our traditions are under a full scale assault from multiple threats. Please “Like” him on Facebook, “Follow” him on Twitter or visit www.rickwells.us
If you contact Mr. Wells about this, please be gentle. Most people have no knowledge of the concept of Conflict of Laws.
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Re: Alabama outlaws "Foreign Law"

Post by notmartha » Wed Nov 12, 2014 2:23 pm

From: http://ballotpedia.org/Alabama_Foreign_ ... t_1_(2014)
Ballot title

The official ballot title of this measure appeared as follows:

Statewide Amendment 1
Proposing an amendment to the Constitution of Alabama of 1901, to prohibit the State of Alabama from giving full faith and credit to public acts, records, or judicial proceedings of another state that violate the public policy of the State of Alabama and to prohibit the application of foreign law in violation of rights guaranteed natural citizens by the United States and Alabama Constitutions, and the statutes, laws, and public policy thereof, but without application to business entities. (Proposed by Act 2013-269)

Yes ( )
No ( )

Ballot summary

The full ballot summary was as follows:

Amendment 1 proposes to add “the American and Alabama Laws for Alabama Courts Amendment” to the State Constitution. Amendment 1 would prohibit courts and other legal authorities from applying foreign law if doing so would violate rights guaranteed to citizens of Alabama. This Amendment does not apply to the laws of other states but applies only to “any law, rule, or legal code or system used outside of the United States or by any other people, group or culture different from the people of the United States or the State of Alabama.”
Amendment 1 would apply to contracts by individual citizens, but would not apply to business entities or to persons who willingly choose to give up the rights protected by this Amendment.
(emphasis mine)

If Amendment1 IS PASSED, Alabama will have in place a Constitutional provision that says Alabama citizens will not be subject to foreign law if application of the foreign law would violate Alabama law or result in a violation of their rights.

If Amendment1 IS DEFEATED, courts and legal authorities may choose to refuse to apply foreign law if the foreign law would result in a violation of Alabama law and/or deprive a citizen of his or her rights, even though there is no statute or Constitutional Amendment requiring them to do so.

There is no cost for this Constitutional Amendment.

The measure will have no impact on taxes.

The Constitutional authority for passage of this Amendment is set forth in Sections 284, 285, and 287 of the State Constitution. These sections outline the way a constitutional amendment may be put to the people of the State for a vote.

Constitutional changes

See also: Alabama Foreign Laws in Court, Amendment 1 (2014), constitutional text changes
The measure added an amendment to the Alabama Constitution. The full text of the constitutional changes can be read here.
And here is the text of the amendment:
PROPOSED AMENDMENT
  1. (a) This amendment shall be known and may be cited as the American and Alabama Laws for Alabama Courts Amendment.
  2. (b) The law of Alabama provides:
    1. (1) The State of Alabama has developed its unique public policy of laws based on the United States Constitution, as protected by Amendment 10 to the United States Constitution.
    2. (2) Upon becoming a state in 1819, Alabama adopted its first constitutional and statutory enactments, upon which it has built the rights, privileges, obligations, and requirements of its government and citizens.
    3. (3) Both the provisions of the Alabama Constitution and the statutes and regulations of the State of Alabama, with interpreting opinions by its courts of competent jurisdiction, have developed the state's public policy.
    4. (4) The public policy of the State of Alabama protects the unique rights of its citizens beginning with Article I, Section 1 of the Constitution of Alabama of 1901, guaranteeing the equality and rights of men. Except as permitted by due process of law and the right of the people to vote for self-determination, the rights, privileges, and immunities of the citizens of the State of Alabama are inviolate.
    5. (5) Different from the law of the State of Alabama is foreign law, which is any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.
    6. (6) Alabama has a favorable business climate and has attracted many international businesses. While Alabama business persons and companies may decide to use foreign law in foreign courts, the public policy of Alabama is to prohibit anyone from requiring Alabama courts to apply and enforce foreign laws.
    7. (7) The public policy of this state is to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the Alabama Constitution or of the United States Constitution, including, but not limited to, due process, freedom of religion, speech, assembly, or press, or any right of privacy or marriage.
    8. (8) Article IV, Section 1, of the United States Constitution provides that full faith and credit shall be given by each state to the public acts, records, and judicial proceedings of other states. Provided, however, when any such public acts, records, and judicial proceedings of another state violate the public policy of the State of Alabama, the State of Alabama is not and shall not be required to give full faith and credit thereto.
  3. (c) A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.
  4. (d) If any contractual provision or agreement provides for the choice of a foreign law to govern its interpretation or the resolution of any dispute between the parties, and if the enforcement or interpretation of the contractual provision or agreement would result in a violation of a right guaranteed by the Constitution of this state or of the United States, the agreement or contractual provision shall be modified or amended to the extent necessary to preserve the constitutional rights of the parties.
  5. (e) If any contractual provision or agreement provides for the choice of venue or forum outside of the states or territories of the United States, and if the enforcement or interpretation of the contract or agreement applying that choice of venue or forum provision would result in a violation of any right guaranteed by the Constitution of this state or of the United States, that contractual provision or agreement shall be interpreted or construed to preserve the constitutional rights of the person against whom enforcement is sought. If a natural person subject to personal jurisdiction in this state seeks to maintain litigation, arbitration, an administrative proceeding, or a similarly binding proceeding in this state, and if a court of this state finds that granting a claim of forum non conveniens or a related claim violates or would likely lead to the violation of the constitutional rights of the nonclaimant in the foreign forum with respect to the matter in dispute, the claim shall be denied.
  6. (f) Any contractual provision or agreement incapable of being modified or amended in order to preserve the constitutional rights of the parties pursuant to the provisions of this amendment shall be null and void.
  7. (g) Nothing in this amendment shall be interpreted to limit the right of a natural person or entity of this state to voluntarily restrict or limit his, her, or its own constitutional rights by contract or specific waiver consistent with constitutional principles. However, the language of any such contract or other waiver shall be strictly construed in favor of preserving the constitutional rights of the natural person in this state. Further, no Alabama court shall be required by any contract or other obligation entered into by a person or entity to apply or enforce any foreign law.
  8. (h) Except as limited by subsection (g), without prejudice to any legal right, this amendment shall not apply to a corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.
  9. (i) Where the public acts, records, or judicial proceedings of another state violate the public policy of the State of Alabama, the State of Alabama shall not give full faith and credit thereto.[2]
References

Jump up ↑ Alabama Legislature, "SB4," accessed July 11, 2014
Jump up ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
I need to chew on this a bit. The Bible belt is quite nationalistic, and I believe the people there would call anything that was not US law "foreign law". And I'd venture to guess that less than 10% of the 72.35% that voted to enact this amendment ever read it.
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Re: Alabama outlaws "Foreign Law"

Post by editor » Wed Nov 12, 2014 6:22 pm

Thanks, notmartha.

I formatted your post to sort out the paragraphs in the text of the Act. Makes it easier to read.
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Re: Alabama outlaws "Foreign Law"

Post by notmartha » Wed Nov 12, 2014 9:36 pm

Thanks, Editor, for tidying up my post,

These sections are some of the more pertinent, imo…

Section b5 of proposed amendment defines “foreign law” as:
“any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.”
Section b6 of proposed amendment:
“the public policy of Alabama is to prohibit anyone from requiring Alabama courts to apply and enforce foreign laws.”
Section c of proposed amendment:
“(c) A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.”
So…

All agents of STATE may not apply or enforce (i.e. recognize) any foreign law, which may include but is not limited to:

- The Kingdom Laws written on the fleshy parts of our hearts by our King (Ezekiel 36:26-28; Romans 2:15; 2 Corinthians 3:2-6)
- Lex non scripta (unwritten laws such as law of nature, the law of nations, the common law, and customs)

I don’t see where the proposed amendment has actually changed anything. The purported judges, LEOs, and other agents of the U.S. have always considered anything but public policy as foreign to their “law” and something they could not see.
Last edited by notmartha on Wed Feb 04, 2015 1:53 pm, edited 1 time in total.
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Re: Alabama outlaws "Foreign Law"

Post by notmartha » Sat Dec 06, 2014 2:44 pm

Here is the Model Legislation for the American Laws for American Courts Act (ALAC) from here.
MODEL LEGISLATION

AN ACT to protect rights and privileges granted under the United States or [State] Constitution.

BE IT ENACTED BY THE [GENERAL ASSEMBLY/LEGISLATURE] OF THE STATE OF [_____]:

The [general assembly/legislature] finds that it shall be the public policy of this state to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the constitution of this state or of the United States, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

The [general assembly/state legislature] fully recognizes the right to contract freely under the laws of this state, and also recognizes that this right may be reasonably and rationally circumscribed pursuant to the state’s interest to protect and promote rights and privileges granted under the United States or [State] Constitution, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.
  • [1] As used in this act, “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals For the purposes of this act, foreign law shall not mean, nor shall it include, any laws of the Native American tribes in this state.

    [2] Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this State and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

    [3] A contract or contractual provision (if severable) which provides for the choice of a law, legal code or system to govern some or all of the disputes between the parties adjudicated by a court of law or by an arbitration panel arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable if the law, legal code or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

    [4]
    1.A. A contract or contractual provision (if severable) which provides for a jurisdiction for purposes of granting the courts or arbitration panels in personam jurisdiction over the parties to adjudicate any disputes between parties arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable if the jurisdiction chosen includes any law, legal code or system, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

    2.B. If a resident of this state, subject to personal jurisdiction in this state, seeks to maintain litigation, arbitration, agency or similarly binding proceedings in this state and if the courts of this state find that granting a claim of forum non conveniens or a related claim violates or would likely violate the fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions of the non-claimant in the foreign forum with respect to the matter in dispute, then it is the public policy of this state that the claim shall be denied.

    [5] Without prejudice to any legal right, this act shall not apply to a corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.

    [6] This subsection shall not apply to a church, religious corporation, association, or society, with respect to the individuals of a particular religion regarding matters that are purely ecclesiastical, to include, but not be limited to, matters of calling a pastor, excluding members from a church, electing church officers, matters concerning church bylaws, constitution, and doctrinal regulations and the conduct of other routine church business, where 1) the jurisdiction of the church would be final; and 2) the jurisdiction of the courts of this State would be contrary to the First Amendment of the United States and the Constitution of this State. This exemption in no way grants permission for any otherwise unlawful act under the guise of First Amendment protection.

    [7] This statute shall not be interpreted by any court to conflict with any federal treaty or other international agreement to which the United States is a party to the extent that such treaty or international agreement preempts or is superior to state law on the matter at issue.
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Re: Alabama outlaws "Foreign Law"

Post by editor » Sat Dec 06, 2014 9:33 pm

The reason for my concern with this issue is that any time the government wants to pass a law supposedly for the purpose of correcting a perceived wrong, the law usually accomplishes the exact opposite. Just look at the name of the law, envision what would be the antithesis, and you will usually be pretty close to the mark.

With this Act, and ones like it, I suspect the government of trying to seize more power for its courts, which would be consistent with a title such as, "AN ACT to protect rights and privileges granted under the United States or [State] Constitution."

I direct your attention to paragraph 3, which seeks to render unenforceable mutually agreed contracts if, in the opinion of some U.S. judge, the contract contains a clause which sets the jurisdiction for related disputes outside the reach of U.S. courts. What they are saying is that such a clause may not be used to void the U.S. court's presumed jurisdiction; they may claim the right anyway, in spite of such a clause.

This is in direct violation of the U.S. Constitution which prohibits government from enacting any law "impairing the Obligation of Contracts".

This paragraph seems to diluted somewhat by the language,
"...if the law, legal code or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state."
However, we have seen many examples the past few years of outrageous Supreme Court decisions. The Court is obviously biased, and cannot be trusted in its duty to hold government to its Constitutional boundaries.

For years, I have been drafting contracts in which the parties mutually agree to submit disputes to arbitration rather than use the courts. This is not unusual and, in fact, has become fairly mainstream. Mortgages, rental agreements, employment contracts, and service agreements of every kind are examples of contracts which now commonly contain waivers of the right to sue in any forum other than a specific arbitration firm.

Most of these more mainstream contracts name the American Arbitration Association, or some other high profile and well established firm. My contracts commonly name a quorum of deacons for a particular church or, if one is available, the common law court of a Christian Jural Society. Such contracts might also state they are made subject to God's Law, as set out in the King James Bible, Authorized Version, Anno Domini, sixteen hundred and eleven. It is important to note that although historians recognize the United States was founded according to God's Law, the Supreme Court would consider this to be foreign law.

Once parties have joined in such a contract, the prior agreed-upon arbitrator has all the powers of a court except public powers of enforcement. As anyone knows who has sued or been sued, getting a judgment is one thing, but collecting is completely another.

If the losing party refuses to pay, then the common remedy is to file a petition to enforce a foreign judgment with an appropriate state or federal court. The term "foreign judgment" does not necessarily mean the court is from Iran or Syria, or some other part of the world. It merely means the court from whence the judgment came was foreign in jurisdiction to the court in which the claimant seeks enforcement.

Please notice that paragraph 6 specifically exempts corporations, which retain the right to make contracts according to foreign law.

Ask yourself how an Act such as this protects the parties to a contract who have all mutually agreed? It seems to be to be nothing more than a blatant power grab, at a time when such thing might be passed due to the ease with which an unsuspecting public can be stirred up into an anti-Muslim frenzy.

I wish I had more time to explore this right now, but perhaps this will serve to open discussion on the issue?

Topics for discussion...

* Notice that marriage is specifically mentioned in this Act. This means the Courts can deny any claims of coverture, if the Court deems they might violate some farsical adaptation of supposed Constitutional rights for one party or another? This would impair the Obligation of a marriage compact, if the compacts terms did not exactly jive with someone's idea of "public policy."

What are some other applications? I've got to go for now.
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Re: Alabama outlaws "Foreign Law"

Post by notmartha » Sun Dec 07, 2014 5:50 am

Here is a case to examine for its detailed opinion of the Free Exercise Clause.

SD v. MJR, 2 A. 3d 412 - NJ: Appellate Div. 2010
http://scholar.google.com/scholar_case? ... s_sdt=6,39
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Re: Alabama outlaws "Foreign Law"

Post by notmartha » Fri Dec 12, 2014 2:57 pm

Applying God’s Law: Religious Courts and Mediation in the U.S.

Across the United States, religious courts operate on a routine, everyday basis. The Roman Catholic Church alone has nearly 200 diocesan tribunals that handle a variety of cases, including an estimated 15,000 to 20,000 marriage annulments each year. In addition, many Orthodox Jews use rabbinical courts to obtain religious divorces, resolve business conflicts and settle other disputes with fellow Jews. Similarly, many Muslims appeal to Islamic clerics to resolve marital disputes and other disagreements with fellow Muslims.

For the most part, religious courts and tribunals operate without much public notice or controversy. Occasionally, however, issues involving religious law or religious courts garner media attention. The handling of clergy sexual abuse cases under Catholic canon law, for example, has come under scrutiny. Internal church proceedings aimed at disciplining Protestant clergy have generated news coverage because they have highlighted debates over same-sex marriage and openly gay ministers. There also have been public protests against Orthodox Jewish men who refused to grant their wives a religious divorce. Meanwhile, bills aimed at banning the use of Islamic (sharia) law – or at restricting the application of religious or foreign law in general – have been introduced in more than 30 state legislatures. (For more details on those legislative initiatives, see the map graphic “State Legislation Restricting Use of Foreign or Religious Law.”)

Disputes over the laws of various religious traditions have occasionally made their way into U.S. civil courts, but the Supreme Court consistently has ruled that judges and other government officials may not interpret religious doctrine or rule on theological matters. In such cases, civil courts must either defer to the decisions of religious bodies or adjudicate religious disputes based on neutral principles in secular law. For example, in recent years the Episcopal Diocese of Virginia has battled in state court with several congregations over control of buildings, property and funds after the congregations voted to join more theologically conservative branches of the worldwide Anglican Communion. So far, the cases have been decided in favor of the diocese using contract and real estate law rather than church law.

Role of Mediation in Religious Legal Disputes

Grievances within a faith tradition often are settled amicably or adjudicated by the religious community itself without involvement from religious or secular courts. Indeed, many religious groups encourage members who are accused of (non-criminal) moral wrongdoing or who are involved in a financial dispute with another member of the religious group to engage in mediation in an effort to come to a voluntary agreement. In many cases, more formal tribunals and the like are employed only after such efforts at mediation fail.

For many Christians, mediation is more than just a cost-efficient way to resolve disputes. Some cite biblical passages, such as St. Paul’s First Letter to the Corinthians, which urge believers to bring their grievances to fellow believers rather than to outside authorities. In addition, some Christians believe that mediation helps to promote reconciliation and forgiveness for everyone involved. “God has called us to something that’s more glorifying than proving what’s right or even just,” according to Annette Friesen, who works as a conciliation and training consultant at Peacemaker Ministries’ Institute for Christian Conciliation in Billings, Mont.

Mediation also has a place in other faith traditions. For instance, a saying (or hadith) of the Prophet Muhammad speaks of the risks judges take when they make wrong or unjust decisions. As a result, mediation is often viewed as a better course of action than settling the dispute in court, according to Imam Moujahed Bakhach, who directs the Mediation Institute of North Texas in Fort Worth.8 “Many Muslims like mediation for resolving problems because it allows them to work things out without necessarily disclosing private matters in a public place,” Bakhach says.

Jews – particularly the Orthodox, who often view Jewish law (halakhah) as governing nearly every aspect of daily life – also frequently turn to religious mediators to resolve disputes with fellow Jews. “Mediation is strongly favored in Jewish law, and rabbinic literature contains high praise for parties who are able to settle their disputes rather than engage in litigation,” according to Rabbi Shlomo Weissmann, director of Beth Din of America, a rabbinical court in New York City. “While there is no specific process for mediation that all or most rabbis follow, rabbis encourage settlement and will attempt to mediate disputes whenever that is possible.”

When mediation is not possible, either because the parties are unable to come to a settlement or because the case involves accusations of a particularly serious nature, churches and other religious groups may turn to religious courts or tribunals.
Go to the site to see specifics on the individual corporate churches' codes.
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Re: Alabama outlaws "Foreign Law"

Post by editor » Fri Dec 12, 2014 8:35 pm

I followed the link for this article on Religious Courts, and it is very interesting. Thank you, notmartha, for posting it.

A topic I wish they had touched on in more detail, is the cooperation of state courts and religious courts, when such cooperation becomes necessary. This, to me, seems to be the real topic of interest with regard to Alabama's foreign law statute.

The article discussed mediation much more extensively than arbitration. Mediation is important, and should always be tried first, but it is a simple fact than there will be times when parties to a dispute will not agree. Sometimes arbitration is the only way. Arbitration is a traditional tool of the church, and is not limited to state courts.

What is at stake with these foreign law statutes, is the degree to which state courts will recognize and enforce church judgments.

For example, many of these church courts handle annulments and divorce as a matter of course. What is not mentioned, is the degree to which the court, or the parties, must interface with the state in order to finalize the proceedings. A man and a woman are not required to obtain a marriage license from the state to be married, however most people today do not realize this. Further, some state benefits may not be obtainable without a marriage license. Most married people today obtained a marriage license.

When those people decide to divorce it is not enough that a church court grants their divorce, because the state is also a party to their marriage. A petition of some kind must be made to the state court, so that the state may also be divorced from the parties.

Divorce nearly always includes the division of property and the custody and maintenance of children. If the couple thought ahead and entered into a marriage compact at the time of joining, then most or all of these issues have been agreed in advance. However this is rare; most people don't do it, and even for the ones who do, it's common that issues later arise which were not foreseen.

If the couple agree through mediation, it is the mediator's job to construct an contract which embodies the agreement between the parties.

If, as a part of their marriage compact, the couple agreed to grant rights of arbitration to their church, then the church has jurisdiction to arbitrate disputes that can't be successfully mediated. The couple may also decide later, at any time, to grant jurisdiction to the church. Assuming the church has this authority, it may then grant a divorce, as well as assign property and custody rights, as well as ongoing liability for maintenance.

Now what about the state?

From the perspective of the state, a consent agreement drafted by a mediator and signed by the parties, and a judgment from an arbitrator who had the mutual consent of the parties, are both functionally equivalent. Both amount to an order arrived at through "foreign law." The question is, how will the state proceed when presented with such an order?

In the case of divorce with marriage license, the court must also consider the state's interest, which is primarily that dependent children, as well as an indigent ex-wife, do not become an expense of the state. Assuming the church order covered all these bases, the state's order should be a rubber-stamp of the church order. Otherwise the state would have the right to make modifications, but would generally follow the church order in most respects.

Once the state issues its order, then if either party fails to live up to its part, the state may be called upon in the form of the sheriff, or another appropriate official, to enforce the order and bring about compliance.

The above example was one in which the state was a party, and had a vested interest. But what about cases in which the state is not a party, and has no vested interest? This could be almost anything, but let's construct a brief example which carefully removes any possiblity of the state being a party.

Adam asks Bob to build him a barn and Bob agrees. They construct a contract. Adam agrees to buy all the materials, for which Bob will provide a list. Bob agrees to have the barn finished before September 1st. Adam agrees to pay Bob one-hundred dollars in silver coin, provided the job is done on time, with a penalty of one dollar per day for each day it goes unfinished past the 1st. They mutually agree, in the event of any dispute, to abide by the ruling of a quorum of deacons of their local church, of which they are both members.

Bob finishes the barn on September 5th, four days past the deadline. Adam is furious with the delay. He pays Bob fifty dollars, and tells Bob that's all he's going to get. Bob tells Adam he is stil owed another fifty dollars, but Adam refuses to pay another dime.

Bob takes the dispute to the church, which first attempts to mediate. But Adam and Bob are stubborn and won't agree. Finally the church arbitrates, since they were given the right pursuant to the contract Adam and Bob signed. The church orders Adam to pay Bob forty-six dollars in silver.

Adam, still angry, refuses to pay Bob in defiance of the order.

Bob goes to the state (county) court, and files a petition to enforce a foreign order. The state court reviews the foreign judgment, finds everything to have been done correctly, and issues an order to the sheriff to seize property from Adam to be given to Bob. The sheriff goes to Adam's farm and takes several cattle which are later sold, and the funds are given to Bob.

The way I understand it, both of the above examples illustrate how every state in the United States would handle these situations except, now, Alabama.
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notmartha
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Re: Alabama outlaws "Foreign Law"

Post by notmartha » Sat Dec 13, 2014 1:37 pm

Alabama is not the only State passing a foreign law act. The most recent list of participating states I’ve found is in the link I posted. Almost every state has passed or is in the process of passing an act such as this.

I believe the “court” will find and/or create an interest in the case of Bob and Adam via their contacts. Because I have not read the hypothetical contract, I’ll assume (because “this State” will) that:

Adam is ADAM, a person residing in “this State” and a US citizen
Adam’s farm is incorporated and/or affected with a public interest
Bob is BOB, a person residing in “this State” and a US citizen
Bob is a contractor licensed by “this State” and an agent thereof
The barn raising takes place in “this State”
The materials were purchased in “this State” using “this State’s” FRN’s
The incorporated CHURCH is a creation of “this State” and an agent thereof
The contract was signed by BOB, ADAM, and CHURCH in “this State”

Bob going to the “Court of this State” and asking for the benefit of a judgment, in addition to the above mentioned contacts, will bring “Court of this State” to arbitrate a contract within their jurisdiction. They won’t see it as foreign. Every contract that the US courts adjudicate on must conform to Public Policy or they can’t see it. They will bring about this conformation through the minimum contacts doctrine, or change the contract to conform. In the instance of Bob and Adam, most of the contract conformed to Public Policy standards, but the court could not enforce the restitution in silver; Bob most assuredly received FRN’s as payment regardless of what the contract stipulated.

Maybe it would have been more prudent for Bob and Adam to agree to have the church deacons hold the money and disburse it upon job completion. Then court could have been avoided altogether.
"Ye shall not fear other gods, nor bow yourselves to them, nor serve them, nor sacrifice to them:" 2 Kings 17:35
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