Alabama outlaws "Foreign Law"

Discussion on creating and maintaining Conflicts of Law
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Re: Alabama outlaws "Foreign Law"

Post by editor » Sat Dec 13, 2014 10:40 pm

Notmartha,

Those are all good and valid concerns; all are issues we discussed in the Christ county meetings in which we created the Christ county Court Rules. Although we never tested it, our research seemed to indicate that most petitions to enforce a foreign judgment would succeed. Of course we could have been wrong.

This is BEFORE the passage of a foreign law act such as we are discussing. And that is exactly the reason for my concern with these type of acts.

In case anyone is following this thread and has never seen the Christ county Court Rules, here's a link:
http://lawfulpath.com/ref/ccvault/crtruls.htm

You can see that we contemplated this issue, at this section on enforcement:
http://lawfulpath.com/ref/ccvault/crtruls.htm#7.3
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Re: Alabama outlaws "Foreign Law"

Post by notmartha » Mon Dec 15, 2014 2:26 pm

It took me a while to make my way through the Christ county vault. The creation of Christ county looks to be quite an undertaking. It brings up many questions, but for now I'll try to stay on topic.

In regards to whether the State courts would enforce a "foreign" contract, it depends mostly on two issues:

1. Does the contract meet Public Policy criteria?

Black's 6th defines Public Policy doctrine as:
“Doctrine whereby a court may refuse to enforce contracts that violate law or public policy.”
Notice it says “may refuse”. One of the major problems with a fascist system is its arbitrary and capriciousness. It is at their whim. Judgey Wudgey may be in a good mood that day and decide to show a kindness, or he may not.

2. Is there a Compelling State Interest?

West's Encyclopedia of American Law, edition 2 defines "State Interest" as:
A broad term for any matter of public concern that is addressed by a government in law or policy.

State legislatures pass laws to address matters of public interest and concern. A law that sets speed limits on public highways expresses an interest in protecting public safety. A statute that requires high school students to pass competency examinations before being allowed to graduate advances the state's interest in having an educated citizenry.

Although the state may have a legitimate interest in public safety, public health, or an array of other issues, a law that advances a state interest may also intrude on important constitutional rights. The U.S. Supreme Court has devised standards of review that govern how a state interest will be constitutionally evaluated.

When a law affects a constitutionally protected interest, the law must meet the Rational Basis Test. This test requires that the law be rationally related to a legitimate state interest. For example, a state law that prohibits a person from selling insurance without a license deprives people of their right to make contracts freely. Yet the law will be upheld because it is a rational means of advancing the state interest in protecting persons from fraudulent or unscrupulous insurance agents. Most laws that are challenged on this basis are upheld, as there is usually some type of reasonable relation between the state interest and the way the law seeks to advance that interest.

When a law or policy affects a fundamental constitutional right, such as the right to vote or the right to privacy, the Strict Scrutiny test will be applied. This test requires the state to advance a compelling state interest to justify the law or policy. Strict scrutiny places a heavy burden on the state. For example, in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the state interest in protecting unborn children was not compelling enough to overcome a woman's right to privacy. When the state interest is not sufficiently compelling, the law is struck down as unconstitutional.
In every post-1963 case I've read regarding foreign or religious law, the courts have used their long arms to change contracts in favor of public policy and to find a compelling state interest in order to pull a purportedly foreign law or contract into their jurisdiction. I don't see how the Foreign Law Act changes any of that, other than giving the "judges" something other than precedent to point at.

ETA: saw this and found it applicable

USC Title 42 THE PUBLIC HEALTH AND WELFARE >>>Chapter 21 CIVIL RIGHTS>>>>Section B RELIGIOUS FREEDOM RESTORATION
lii_usc_TI_42_CH_21B.pdf
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Re: Alabama outlaws "Foreign Law"

Post by notmartha » Tue Feb 03, 2015 2:52 pm

Islamic Tribunal Confirmed in Texas; Attorney Claims ‘It’s Voluntary’
from: HERE
An Islamic Tribunal using Sharia law in Texas has been confirmed by Breitbart Texas. The tribunal is operating as a non-profit organization in Dallas. One of the attorneys for the tribunal said participation and acceptance of the tribunal’s decisions are “voluntary.”

Breitbart Texas spoke with one of the “judges,” Dr. Taher El-badawi. He said the tribunal operates under Sharia law as a form of “non-binding dispute resolution.” El-badawi said their organization is “a tribunal, not arbitration.” A tribunal is defined by Meriam-Webster’s Dictionary as “a court or forum of justice.” The four Islamic attorneys call themselves “judges” not “arbitrators.”

El-badawi said the tribunal follows Sharia law to resolve civil disputes in family and business matters. He said they also resolve workplace disputes.

In matters of divorce, El-badawi said that “while participation in the tribunal is voluntary, a married couple cannot be considered divorced by the Islamic community unless it is granted by the tribunal.” He compared their divorce, known as “Talaq,” as something similar to the Catholic practice of annulment in that the church does not recognize civil divorce proceedings as ending a marriage.

He also said there is a difference between how a man and a woman can request a divorce under their system. “The husband can request the divorce directly from the tribunal,” El-badawi stated. “The wife must go to an Imam who will request the divorce for her.” He called it “two paths to the same result.” The practice of Khula is the process where a wife can initiate a divorce proceeding and where the husband can agree to the divorce in exchange for a financial compensation. It appears the wife must agree to give up any claim to the “dower” that was not already paid or to return it if it has already been paid. Once the financial issues are resolved the husband can then proclaim the Talaq (divorce).

El-badawi said they follow Texas family law when it comes to child support, visitation, and custody. He said that in most cases, custody of children is awarded to the mother.

Breitbart Texas asked what happens when there is a conflict between Sharia law and Texas law. El-badawi said most of the time, the laws are in agreement. When pushed further he admitted that, “we follow Sharia law.” However, he explained, “If the parties are not satisfied with the tribunal’s decision, they do not have to accept it and they can take the matter to Texas civil courts.” He did not say what the social ramifications of rejecting the “judge’s” decision would be.

The website for the Islamic Tribunal states, “The courts of the United States of America are costly and consist of ineffective lawyers. Discontent with the legal system leads many Muslims in America to postpone justice in this world and opt for an audience on the Day of Judgment.”

It goes on to state, “It is with this issue that Muslims here in America are obligated to find a way to solve conflicts and disputes according to the principles of Islamic Law and its legal heritage of fairness and justice in a manner that is reasonable and cost effective.”

In explaining Sharia law, the website states, “Stoning adulterers, cutting of the hands, polyandry and the like (all can be traced in the relevant literature and can be explained in their Islamic legal mentality and rational context in fairness and justice), are mainly a part of Islamic Criminal Law. In fact criminal law within Islam only makes up a fraction of the Shari’ah. It is unscholarly and unfair to generalize that type of understanding, that is Criminal Law, to compromise the whole of Islamic law if we stick to speaking in technical terms.”

The website lists four “judges:” Imam Yusuf Z.Kavakci, Imam Moujahed Bakhach, Imam Zia ul Haque Sheikh and Dr. El-badawi. It states the Islamic Tribunal resolves business disputes, divorce (Talaq) cases, community problems, serious family problems, and Khula.

El-badawi restated several times that participation in the tribunal is voluntary. However, he would not discuss what happens to someone who did not follow their rulings.

Bob Price is a senior political news contributor for Breitbart Texas and a member of the original Breitbart Texas team. Follow him on Twitter @BobPriceBBTX.
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Re: Alabama outlaws "Foreign Law"

Post by notmartha » Wed Feb 25, 2015 2:37 pm

"Foreign Law" case being heard in SCOTUS today (2-25-15):

Justices weigh case of Muslim denied job over headscarf

The Associated Press - By By MARK SHERMAN
WASHINGTON (AP) — The Supreme Court is considering the employment discrimination claim of a Muslim woman who was turned down for a job by clothing retailer Abercrombie & Fitch after she showed up at her job interview wearing a black headscarf that conflicted with the company's dress code.

The case being argued Wednesday explores when an employer must take steps to accommodate the religious beliefs of a worker or job applicant. Central to the case is that applicant Samantha Elauf never explicitly voiced her religious views or her need to wear a headscarf on the job, although the assistant store manager who interviewed her correctly assumed Elauf was a Muslim who dressed as she did for religious reasons.

Abercrombie & Fitch has since changed its policy on headscarves and has settled similar lawsuits elsewhere. But it has continued to fight Elauf's claim at the Supreme Court.

Elauf was 17 when she interviewed for a "model" position, as the company calls its sales staff, at an Abercrombie Kids store in a shopping mall in Tulsa, Oklahoma, in 2008. She impressed the assistant store manager. But her application faltered over her headscarf, or hijab, because it conflicted with the company's Look Policy, a code derived from Abercrombie's focus on what it calls East Coast collegiate or preppy style.

At the time of the interview, the policy required employees to dress in a way that's consistent with the clothing Abercrombie sells, and it prohibited wearing headscarves or anything in black. The company has said it changed its headscarf policy as early as 2010, but the ban on black clothing remains.

The woman who conducted the interview consulted with a more senior supervisor and then decided not to hire Elauf.

The federal Equal Employment Opportunity Commission filed suit on Elauf's behalf, and a jury eventually awarded her $20,000.

But the federal appeals court in Denver threw out the award and concluded that Abercrombie & Fitch could not be held liable because Elauf never asked the company to relax its policy against headscarves.

Organizations of state and local governments are supporting the company out of concerns that, if the EEOC prevails, they would be subject to more discrimination claims as large employers.

Muslim, Christian and Jewish advocacy organizations have weighed in on Elauf's side, as have gay-rights groups.

A legal brief on behalf of Orthodox Jews argues that requiring job applicants to voice the need for religion-related special treatment makes them less likely to be hired, with no reason given for the decision. Orthodox Jews who wear a skullcap, or yarmulke, or who may not work on Saturdays are routinely advised to withhold that information until after they are hired, lawyer Nathan Lewin said in his Supreme Court filing.
You can see 10th circuit opinion here.

Questions:

1. Will Abercrombie and Fitch's policy against headcoverings for employees be found to go against Public Policy?
2. Will there be a "compelling State Interest" to recognize a Muslims' "foreign law" right to wear a head covering?
3. Why is this case in court at all, beings Elauf didn't present any religious beliefs until after she was turned down for employment?
4. Why so much hype about this case of a 17 year old that didn't get a job over 5 years ago?

Something to note... Oklahoma, like Alabama (see original post of this thread) already moved to make an anti-foreign law amendment to their constitution and was struck down by a federal judge. No dialectics going on here, huh?

Update:
Argument transcript found here: http://www.supremecourt.gov/oral_argume ... 6_p8k0.pdf
Last edited by notmartha on Mon Apr 13, 2015 12:44 pm, edited 1 time in total.
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Re: Alabama outlaws "Foreign Law"

Post by editor » Thu Feb 26, 2015 7:31 am

I agree-- it has the appearance of political wrangling, much more so than deciding an actual point of law.
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