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Jan 17 2012

Why the ACLU Opposed the Oklahoma Law

My FTB colleague Maryam Namazie, who I respect greatly for her tireless work on behalf of equal rights around the world, republishes a letter from the British group One Law for All to the ACLU, criticizing them for opposing the anti-sharia law in Oklahoma. That letter is sadly misguided and misunderstands the American legal system. Let me explain why once again, as I have done many times before.

Let me first say that I think Maryam and One Law for All have positive motivations here. They are genuinely opposed to laws that truly do destroy equal rights for women, and for everyone for that matter. If sharia law were to be implemented, the results would indeed be very bad. People like me would be the first ones with our heads on the chopping block. There is nothing I would oppose more than the implementation of sharia law in the United States.

But I think they are being entirely unfair to the ACLU here when they ask how they can “simultaneously support the application of sharia law in US Courts while claiming to stand up for the rights of women and fight against gender-based violence and discrimination.” This is a false dichotomy, a classic fallacy of the excluded middle based on the assumption that opposing the Oklahoma bill means supporting sharia law. It excludes the perfectly rational position that the ACLU has actually taken here.

The letter to the ACLU cites lots of specifics, all of them accurate, about how sharia law destroys equality. But every single case is from the UK, not from the United States. There is a reason for this. The U.S. does not have “sharia courts” as they have in the UK, nor do we have any problem at all handling such situations. The far right in America likes to pretend otherwise, but every single case they have used to try to support their position actually supports the opposite conclusion. I explained this in a thorough review of one outrageously fake “study” put out by Frank Gaffney’s Center for Security Policy.

Sharia law is a very broad thing. It governs all kinds of situations, not just the really bad ones like only allowing men to have control over divorce. For a Muslim, it also governs things like requiring them to give to charities, how to decide who should lead a mosque, and how to handle inheritance. And there are situations where it is perfectly legitimate for a court to enforce such laws. For example, if a Muslim’s will says that their inheritance must be divided up according to Islamic principles and the trustee of the estate does not do so, it is entirely reasonable for someone to bring a lawsuit and for the courts to enforce those provisions of the will. This is basic contract law and it happens every day in the courts; the fact that it might be done in a situation involving Muslims does not mean that we are one step closer to beheading infidels.

Much is made in the letter to the subject of divorce, and it is certainly true that practices like the triple talaq divorce in Islam are unequal and discriminatory. But they are also unenforceable in the United States. As I note in the link above, in every single case where one party wanted to impose sharia law in a way that would violate the equal rights of the other party, the courts in this country have ruled against it, including in divorces. One example, from a Michigan case where the wife filed for divorce and the husband claimed that they were already divorced because he had pronounced the triple talaq while in India:

Plaintiff did not enjoy the basic rudiments of due process in the instant Indian divorce. Further, she was not represented by an attorney and had no right to be present at the pronouncement. The divorce provided no opportunity for a hearing on the merits and it was not overseen by a court of law…The Equal Protection Clauses of the United States and Michigan Constitutions provide that no person shall be denied the equal protection of the law. If the state distinguishes between persons, the distinctions must not be “`arbitrary or invidious.’” Wives have no right to pronounce the talaq. This distinction is arbitrary and invidious. To accord comity to a system that denies equal protection would ignore the rights of citizens and persons under the protection of Michigan’s laws.

In the comments on the post, the author of the letter brings up a case in New Jersey:

In a matter of domestic violence then, a man could claim the ‘right’ to be judged by sharia rather than domestic law, and therefore claim his right to beat his wife. What about her rights in this instance? And if you’re thinking ‘rubbish’… let me enlighten you: in a New Jersey courtroom in 2010, a judge dismissed a woman’s charge of sexual assault and domestic violence using the following words: “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.”

But the ACLU strongly opposed this ruling as well, which was made by a low-level elected state judge and immediately overturned by the appeals court. The original judge was wrong, flagrantly wrong, and he was rightly smacked down for it. The right principle won out and it won out immediately. Bear in mind that even if New Jersey had such a law, it would not prevent this kind of judge from making the wrong decision; the outcome of such a case would be exactly the same as it was here, a bad decision would be overturned immediately.

A couple more things. The Oklahoma law didn’t just ban the use of sharia law, it also banned the use of international law by any judge in the state for any reason. And here again, there are cases where the courts not only should apply international law, but where they have to. And again, it usually happens in regard to contract law. Some contracts, especially those involving companies from different countries, require the application of international law to govern all sorts of things — currency transactions, international labor standards, even international human rights law.

We all should, and are, opposed to the application of Islamic law in any situation where it denies equal rights to anyone. But that doesn’t mean we should jump on every anti-sharia bandwagon that comes rumbling down the street. In the United States, at least, those bandwagons are usually driven by the far right and they are nothing more than an attempt to deny equal rights to Muslims, as the Park 51 controversy shows beyond all doubt.

And let’s also note that the population of American Muslims is quite different from the population of Muslims in many countries of Europe, including the UK. Surveys show that the American Muslim community is predominately modernist in its outlook, pro-American and pro-equality. London has seen demonstrations with reactionary Muslims demanding the most draconian actions against those who engage in blasphemy, for example, but that is almost inconceivable in the United States. It’s never happened here.

The point of all of this is that the ACLU was correct to oppose this law, and it isn’t because they think sharia law is a good thing or because they don’t support equal rights for women. I doubt you could find any organization in the United States that has more consistently supported the kind of equality that One Law for All correctly advocates for. But this Oklahoma bill is not what they think it is, nor is the situation in the United States remotely like the situation in the UK.

46 comments

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  1. 1
    Steven

    It is good that you make this clarification. American and European atheists are largely in agreement, but we have different enemies. The Americans are struggling with the Christian right and as you mention have muslims that are pretty moderate. In Europe, or to be more precise northwestern Europe, Christianity has largely been reduced to mild-mannered people in cardigans who just want to please everyone. It is instead Islam that is the main problem with parts of our major cities where you’re not safe if you’re an uncovered woman, gay or look like you don’t belong.

  2. 2
    Ace of Sevens

    Thank you. You and Mary Ann disagree on these issues all the time and I’d been hoping to see one of you directly address it.

    International law comes up in other cases, too. For instance, if allegedly stolen property is brought into the US and sold, whether the seller had good title is an important issue. The US courts have to determine this based on the laws of where the object came from, or we would be imposing our own standards on other nations. This came up in some cases regarding artwork stolen by the Nazis.

  3. 3
    matty1

    I must admit to being puzzled by the letter, it mentions Sharia arbitration in the UK but then goes on to list problems with Sharia in relation to family law despite the fact that the following has not to my knowledge changed since 2008

    Whilst it is accepted that parties can agree to arbitrate civil disputes using religious principles under the Arbitration Act 1996, family law matters cannot be the subject of contractually binding arbitration agreements. The jurisdiction of the family courts cannot be ousted by contractual agreement (Edgar v Edgar (1980) 1 WLR 1410). This point was confirmed by the Minister of Justice Jack Straw speaking in Parliament on 24th November 2008 when he said in response to a question about Sharia law courts in the UK: “arbitration is not a system of dispute resolution that may be used in family cases. Therefore no draft consent orders embodying the terms of an agreement reached by the use of a Sharia council have been enforced within the meaning of the Arbitration Act 1996 in matrimonial proceedings“. If a party to a family law dispute wishes to have a binding agreement they must issue proceedings in court. They may then agree to settle the case on terms but the court will only register such a settlement if it is in accordance with UK law and public policy and the court is satisfied that there was consent and equal bargaining power between the parties.

    In my opinion the problem with Sharia ‘courts’ in the UK is not their limited legal power to act as arbitrators in some commercial disputes. It is the use of bullying and lies to discourage Muslim women from seeking the rights that they do have under UK law.

  4. 4
    matty1

    Broken link try again

  5. 5
    eric

    Steve, just to be clear, the ACLU, Ed, and others would still have opposed the law even if it was targeting the Christian right’s beliefs. The ACLU is going to fight for the civil liberties of all its friends and enemies (resource limitations notwithstanding).

    The “here we fight Islamists, there you fight the Christian right” gets the conflict wrong. Its not the ideology per se, its limitations on civil rights. For secularists…and Islamists, and the Christian right.

  6. 6
    matty1

    And from the same source some of what I mean by bullying and lies.

    Evidence from women’s rights groups suggests that the existence of the MATs creates pressure on women from within their communities to submit to the MAT for determination of family or inheritance disputes rather than using UK courts. It is thought that many women would be reluctant to challenge the decision of a MAT in a UK court, therefore even though the decision of the MAT may be in fact unenforceable, women are still deprived of their right to equality at law.
    There is evidence suggesting that women are being forced to ‘sign away’ their family law rights in the civil courts in order to obtain a religious divorce. Any such agreement would not be legally binding. However due to the fact that the women are unlikely to challenge the agreement in a court, steps need to be taken to prevent Sharia Councils from executing such agreements.

  7. 7
    robertbaden

    Also, we do have cases where other religions have beliefs contrary to US law, and those beliefs are not enforceable. No State allows multiple simultaneous marriages for splinter Mormon sects. And any of them that try to force 13 year old girls into marriage will face arrest when found out.

  8. 8
    Ace of Sevens

    Maryam, actually.I apologize for the misnaming.

  9. 9
    Michael Heath

    I presume the effort level that went into the above analysis along with writing this blog post was significant. So thanks Ed for the work along with a very informative report.

  10. 10
    cycleninja

    A typically well-laid-out analysis, Ed. Please let us know if Ms. Namazie has any follow up.

  11. 11
    Ace of Sevens

    I think there are some philosophical differences here. Maryam thinks that is legitimate to ban Sharia even if legally, no one has to use it, because some women are being pressured into accepting arbitration instead of court when it is against their interests. She’s made similar arguments about veiling.

    However, I don’t think the fact that some people may be pressured into choosing against their interests is justification for removing everyone’s choice, especially since removing the choice doesn’t remove the pressure. In fact, if I’m reading this right, a lot of the UK decisions prompting outrage are illegal under UK law and women are just being pressured to dispute them. If the problem isn’t their legal options, but that they are being prevented from exercising their legal options, I don’t see what good changing their options will do. If a woman can be prevented from appealing an illegal decision to the civil courts, she can be prevented from going to the civil courts in the first place. This sounds more like an argument to audit arbitration than to ban it.

  12. 12
    Ace of Sevens

    The above should say women are being pressured not to dispute illegal decisions.

  13. 13
    Ed Brayton

    I think the arguments about veiling and arbitration are on firmer ground. I really have mixed feelings about those issues. A few years ago I slammed France for banning the burqa, but now I’m not so sure. I’m still uncomfortable doing so, but I do understand the argument that Maryam and others make and it has some merit. I think there are competing values there, both of them valid, and it’s a difficult line to draw. And I absolutely do believe that her position is genuine and reflective of a very legitimate concern for the equal rights of women. But the argument that sharia law is coming to America is simply wrong. It isn’t. And there is no plausible mechanism by which it could.

  14. 14
    eric

    Matty @6 and Daniel @11 – what you describe sounds more like an education problem than a legal problem. You have one group of citizens misinforming another group of citizens of what their legal rights are, in order to dupe them into following illegal agreements they don’t have to follow.

    If this is an accurate description of the problem, then Daniel is probably right – changing legal rights may not help. What you need is an educational campaign to inform these folks of their rights of legal appeal under UK law.

  15. 15
    matty1

    What you need is an educational campaign to inform these folks of their rights of legal appeal under UK law.

    Precisely, that and vigorous investigation and enforcement under existing criminal law when the social pressure crosses into domestic abuse.

    As for banning arbitration I’m sceptical it would help. As far as I can see the cases where it is legal are not areas where Sharia is a problem and the cases where Sharia is a problem the Sharia ‘courts’ are already acting outside the law. Short of policing every gathering of Muslims to check they aren’t discussing Sharia I don’t see how the application of Sharia to family law could be made more illegal.

  16. 16
    Chris from Europe

    I also believe that the situation the UK isn’t that different from the US. Judging from the reaction of your fellow blogger to comments criticizing her, I doubt that she understands either situation correctly.

  17. 17
    Chris from Europe

    After reading more of the comments, I don’t see many other explanations as them being bigots. There isn’t much difference between their argument and the hysteric right-wingers that insulted us about this very topic on Scienceblogs.

  18. 18
    Chris from Europe

    @danielrudolph
    Maryam doesn’t even understand that it’s a problem if a law only targets one religion (instead of the objectionable policy, for example).

    The European right’s claims are as truthful as the American right’s.

  19. 19
    eric

    As for banning arbitration I’m sceptical it would help.

    I don’t know about the UK, but AIUI arbitration in the US is voluntary and intended to give people an option to the costs, time, and adversarial nature of the courts. It was also intended as a means of preventing deep pockets organizations from having an immense ‘lawyer advantage’ over small businesses and individuals.

    AIUI, a US contract can require you to go through arbitration before suing someone in court, but it can never take away that right to go to court.

    So, long-winded way of saying I agree with you. I don’t see how removing arbitration could help. I see lots of ways it could hurt, namely, resurrecting all those problems I mention above that it was intended to fix – cost, time, malice of courts, and the ‘lawyer advantage’ a large corporation generally has in court over us small fry.

  20. 20
    Chris from Europe

    @stevenbelgium
    There are still quite a few European Christians who are quite similar to Santorum, except maybe that they know when to shut up.

    It is instead Islam that is the main problem with parts of our major cities where you’re not safe if you’re an uncovered woman, gay or look like you don’t belong.

    I doubt that Islam is the actual problem. How could it be that Germany with a higher share of Muslims than the UK seems to have less problems?

  21. 21
    garnetstar

    Let me just check my list of things to worry about to see how high up the imposition of sharia law is.

    Turns out, I’m more worried about aliens invading from Jupiter.

  22. 22
    Aquaria

    Maryam and OLfL seem to think that sharia courts are 100% independent of secular law, and can take action in contradiction of it, when they’re not and can’t. Not in America. Maybe in the UK this is more of a problem, but America has a lot of safeguards in its Constitution and assorted laws that makes religious law subordinate to the secular.

    Which brings me to another thing that bothered me about their position: They’re going gonzo over sharia, and not noticing that the Jews not only have an extensive system of laws that does many of the same things as sharia, but even has the a huge court system for resolving all kinds of disputes running parallel to secular law, while conforming ultimately to it. I’m 100% positive that Beth Din exists in the UK, and how much effect does it have on UK society?

    So what’s the problem? Why is halacha being accepted or utterly ignored, but not sharia? Have they even seen some of the laws in the halacha? Seriously?

    The hypocrisy is kinda…sickening.

  23. 23
    Chris from Europe

    @Aquaria
    Well, read the comments. She doesn’t really understand equal treatment under the law.

    She reacted the following way:

    So we shouldn’t call for a ban on racial apartheid because it is discriminatory not to also call for a ban on gender apartheid… Ah yes the familiar argument but a false one. It is sharia law and the beth din that are discriminatory not calling for their ban – even if you only call for the ban of one of them!

    Because she asserts that religious arbitration must always be discriminatory, banning the religious court of an unpopular minority isn’t discriminatory. If that’s rational (and based on evidence), then I’m the pope.

  24. 24
    Ace of Sevens

    I wouldn’t say she sounds like Pam Gellar. I’d say she sounds like Pat Condell here.

  25. 25
    Chris from Europe

    Is Pat Condell’s reasoning of the same quality? I see that he is a UKIP supporter …

  26. 26
    laurentweppe

    A few years ago I slammed France for banning the burqa, but now I’m not so sure

    Keep in mind that there are two laws regarding the veil in France: one is about banning every conspicuous religious signs (including the veil) in schools: this law enjoyed a broad support because the retionale behind it was to stop fundie parents from forcing their children to wear religious symbols. The anti-burqa law is a lot more problematic, because it concerns adult women, and because part of the motivation behind it is to please the far-rightists.

    ***

    There are still quite a few European Christians who are quite similar to Santorum, except maybe that they know when to shut up

    It’s worst than that, your Holiness: they learned to mimic secularists: Geert Wilder or Marine Lepen go on TV and pretend that their ethnicist agenda is meant to preserve secularism, and the christian fundies stand up, applaude, and shout “Hurray for Secularism!” while winking to each other.
    ***

    So what’s the problem? Why is halacha being accepted or utterly ignored, but not sharia? Have they even seen some of the laws in the halacha? Seriously?

    The main reason is that while Jews have been -at least for now- been accepted in the country club of the Wealthy Whiteness, many Muslims in Europe are still working class, therefore, feared by said country club.
    (Also, many Europeans believe that the Beth Din is a business association)

    *
    By the way, Ed, not that I want to appear disingenuous or anything, but… Have the group One Law for All and Namazie been correctly veted? I mean, there was the “Riposte Laïque” precedent: when what appeared to be a french unapologetic secularist association turned out to be part of the far-right propaganda apparatus: and I assure you, at first, they seemed to be among the good guys: equal-opportunity fundie bashers, anti-creationist activists, etc… until the Goutte D’Or meltdown when the mask fell and everyone felt dirty and betrayed.

  27. 27
    Chris from Europe

    Well, isn’t the Arbitration Act one secular law for all? ;-)

    I doubt that the UK government will abolish arbitration in general because they want to offload the burden. The rules for arbitration about family matters could be restricted or it could be required that a judge checks the decision for a conflict with public policy.

    She needs to realized that there’s a difference between allowing religious arbitration panels, even with binding arbitration, and preventing any consideration of an agreement or contract that involves religious views of a particular religion. The OK law could render perfectly reasonable contracts unenforcable if they refer to Shariah or international law. How can someone defend that?

    She seems to assume that every Muslim is Islamist and may be blinded by her fervor in the fight against Islam. How else could one argue that singling out a minority for discrimination is alright?

  28. 28
    Paul Neubauer

    eric @19 says:

    AIUI, a US contract can require you to go through arbitration before suing someone in court, but it can never take away that right to go to court.

    See, e.g., Supreme Court rules in favor of arbitration or just google “supreme court arbitration” for an alternate understanding. I don’t want to be too snarky here, but SCOTUS is rather “pro-business” at present.

  29. 29
    Ace of Sevens

    To expand on the above, you can only get a arbiter’s decision overturned if it were against public policy. The arbiter not being impartial is the most likely problem, but difficult to prove.

  30. 30
    matty1

    The rules for arbitration about family matters could be restricted or it could be required that a judge checks the decision for a conflict with public policy.

    According to my first link arbitration cannot be used at all for family matters in the UK. As to whether arbitration is a good thing or is well applied I have no strong opinions. I just think it is misleading to write as if it is being used to enforce private decisions of a type that are not actually enforceable.

  31. 31
    Chris from Europe

    @matty1
    And that includes divorce? What is the problem then?

  32. 32
    matty1

    Yes it includes divorce. As for the problem there are two but neither is ‘British courts impose Sharia.

    1. Some Muslim women are being lied to about their legal rights or bullied into not using those rights. This is not a problem with the law it is a reason for education and support.

    2. One Law for All are conflating the first problem with the separate issue of Sharia arbitration being an option for commercial disputes and confusing people into thinking Sharia ‘courts’ have powers they don’t. I think this is counterproductive as these claims can then be pointed to by those who want to convince a woman she does have to submit to Sharia rules.

  33. 33
    Chris from Europe

    See comment 13.1.1.1.1. That’s simply delusional.

    And I would like to know about the big problem of Sharia law in Europe. I seem to have missed it.

  34. 34
    jesse

    I’ll second Aquaria’s and lawrentweppe’s comments and add that I live in New York, the most Orthodox Jewish city in the US, I think. (That is, the largest group of them in any one place). We have some communities upstate too that are basically cities in themselves.

    Nobody has made any of the arguments Ms. Namazie is making about Jewish law, and it hasn’t created any real problems or conflicts yet. The rule is simple: if it contradicts US law and it is brought to court, Jewish law loses. End of story. And yes, we had reactionary Jews demonstrating and saying women wearing the wrong thing shouldn’t be allowed in parts of Brooklyn and Queens. The rest of us New Yorkers told them “go ahead and try enforcing this. You’ll get no help from us and if you throw a brick at someone you’re getting arrested.”

    And Ed, the problem with banning any religious display worn by people — be it burqas, veils, kipahs, yarmulkes, magen davids or crosses — is that you end up being unfair to one group or another. The laws in Europe they keep proposing banning veils and such always end up focusing on any group that has an outward display of culture or faith. Right now that excludes Christians unless they were banning crucifixes as well.

    Also, you were in New York some years back. Did you know that likely every Jewish woman you saw in the dark skirt was wearing a wig? You can’t reliably ID any orthodox Jewish woman if she decides to wear the lighter wig that day. And do you ban peyas or beards for men? The hats? You see how silly this gets.

    Then we get into the definition of religious display… oy vey :-)

  35. 35
    laurentweppe

    Some Muslim women are being lied to about their legal rights or bullied into not using those rights. This is not a problem with the law it is a reason for education and support.

    Also, the far-right islamophobic extremists who love to pretend that they are “anti-sharia” (while in fact trying to impose their own brand of judeo-christiano-caucasian sharia) has spent years claiming at every opportunity that Sharia courts exists, giving credence to their fiction and making them the de facto accomplices of the islamists trying to bully women into submission.

  36. 36
    Jadehawk

    Then we get into the definition of religious display… oy vey :-)

    indeed. and come to think of it, if there’s mormon missionaries in France (and there seem to be), are the mormon-missionary “uniforms” banned there, too, being as they’re pretty characteristic to those who know what they look like, and identify the guys as members of a specific religious group

  37. 37
    Jadehawk

    ?

  38. 38
    dingojack

    In France only Mormon missionaries wear a suit and tie? Who knew? ;)
    Which leads me to wonder if, in France, one wears a burqa but one isn’t a Muslim or a women (or both) would it still be illegal?
    If it bcame the fashion for Parisiens to wear full Papal regalia would it be illegal for Catholics, but perfect legal for non-Catholics? Or would it be regarded as so common as to not have religious significance?
    Dingo

  39. 39
    laurentweppe

    In France only Mormon missionaries wear a suit and tie? Who knew?

    Let me be precise: in France, the only people who wear suits and ties in their late teens are mormon missionaries. Anyone else would be so ashamed to betray the Grand Brotherhood of the Young that they would probably kill themselves.
    So yeah: if you meet two kids in a suit in France, they’re probably Mormons (although some can hide it a little better than others: Romney already looked like he was fifty when he was a teenager, so it can help.)
    Also, apparently, France is Mormons’ hell: young Mormons dread France, where nearly everyone is secularist. Whether it means that Romney is seen as a badass veteran from hell by other Mormons, I cannot say.

  40. 40
    dingojack

    Laurent – It this guy the French equivalent of Mittens? :D
    Dingo

  41. 41
    laurentweppe

    It this guy the French equivalent of Mittens?

    What do you mean by “Mittens”?

  42. 42
    dingojack

    Sorry, Mt Romney (A pet name of mine & others).
    Dingo
    —–
    Yes – I’m only joking. When it comes to French culture I’ll take your word for it. The nearest I’d get is a Truffaut retrospective.

  43. 43
    laurentweppe

    Naaaaaaaaah, Sarko, if anything, would make a great Romney cosplayer, as he is a known fanboy of the Gordon Gecko style of corporate stooginess: by that, I mean that he deeply admires people like Romney who «made» a lot of money: he has a quasi-sexual fascination toward wealth (some exibitionists can’t help but to show their dicks to everyone: Sarko can’t help but to show his rolex and expensive pens and sunglasses to everyone) and tend to see ruthless businessmen who play fast and loose with laws and morals as great heroic badasses: the only reason he did not end up a randoid college dropout is that Ayn Rand is almost completely unknown in France.
    *
    But, he, himself, is more of a typical lawyer/politician who started his career by being the Janitor in Chief of one France’s richest ghetto for rich people.

  44. 44
    Jadehawk

    Which leads me to wonder if, in France, one wears a burqa but one isn’t a Muslim or a women (or both) would it still be illegal?

    well, considering that muslim students were told they can’t wear bandanas, it might well be that secular use would be legal, but religious use wouldn’t. very weird, convoluted crap, that.

  45. 45
    laurentweppe

    @Jadehawk:

    These students where lied to. While making the intent behind the choice of clothes may seem like convoluted crap, the burden of proof is still onto the authorities.
    Besides, the law does not apply beyong High-schools: university students can wear whatever they want.

  46. 46
    edmundog

    What’s always gotten me with the argument that ‘women are being coerced into arbitration so let’s ban it’ is that it’s no reason to ban it for the women that are there willingly. Or to put it another way, there are probably some women being coerced into getting abortions. But that doesn’t mean we should ban abortion.

  1. 47
    adsense

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