Kansas Passes Anti-Sharia Bill


The Kansas state Senate passed SB 79, one of the many anti-Sharia and anti-foreign law bills either passed or being considered around the country. But this one is different from the law passed in Oklahoma and might well be legitimate, even if largely unnecessary. Here’s what the bill says:

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 the matter at issue in whole or in part on any foreign 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 United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.

This might be a valid way of approaching these issues, though it depends on how exactly it is to be interpreted. It is proper to forbid a court from enforcing any law, religious or foreign, that violates the rights of one of the parties. In fact, the courts already do that. There are instances where religious or foreign law is a proper thing for the courts to rule on, particularly in contracts and arbitration when the parties have agreed to do so in advance. But if enforcing those laws results in a violation of the rights of one of the parties — say, in a divorce case where the husband wants to apply Islamic law that does not provide the kind of due process or substantive protections for the wife — the courts generally refuse to enforce them (indeed, virtually every case that the Islamophobic nuts like Pam Geller cite as proof that American courts are “applying Sharia law” are, in fact, cases where they have refused to do so for exactly that reason). And that’s a good thing.

The one question I have is how broadly the language above would apply. Would it prohibit the application of foreign law in a business or religious arbitration case where the contract specifies that basis for mediation, only when that application violates the rights of one of the parties, or if there is any law in the larger system of law being applied that would violate someone’s rights? Since it does specify that this applies to the parties in the case at hand, I presume it would be interpreted narrowly. And I think that would make it legitimate, as opposed to the Oklahoma law that simply forbids all consideration of foreign or Sharia law in all cases.

Comments

  1. says

    This is wunnerful news! Now the people of Kansas can use this law to overturn any legislation that tries to impose Old Testament or Koranic restrictions on personal freedoms. Do they have a law restricting access to birth-control or abortion based on Biblical principles? It’s history.

    Seriously, if there’s any liberals left in that state, they really should try to use this law to roll back all traces of Christofascist tyranny, at least to see how the law’s sponsors react.

  2. raven says

    It appears to also prohibit a lot of xian religious law as well.

    The kids will be relieved. They won’t have to worry about being sold as sex slaves or stoned to death for being disobedient.

  3. No Light says

    Fantastic, that means they’ll be banning batei dinim too. So now rabbis won’t be able to protect child rapists any more!

    Oh, they won’t? That group of goat-herders who cover their women from head to toe, segregate themselves, and live by a parallel legal system aren’t the same as them there mooslins, who are *whispers* mostly brown .

  4. jerthebarbarian says

    Not a lawyer, but what’s the impact of this on the Catholic Church’s Canon Law courts? Will Catholics need to go out of state to get an annullment? Will Canon Law courts have to meet in other states to defrock a priest? Also what about rabbinical rulings on matters of Jewish divorce laws? And are there any Amish in Kansas? They have their own “courts” to punish followers who deviate from their religious laws. And if it’s a question of “well we’re just talking about the legal aspects here, not the religious aspects”, then what exactly are they doing here? It’s not like a Sharia court’s divorce is recognized in the US any more than a Canon Law annulment is – if you get an annulment or follow the Islamic rules for divorce you still need to go through legal divorce proceedings to break the marriage license. So what exactly are they worried about?

  5. Gregory in Seattle says

    It will be interesting to see how this might be applied to halakhah, the Jewish equivalent of sharia; while I would be surprised if Kansas has even one rabbinical court, their place as arbitrators is fairly well established in US common law. And what about Roman Catholic canonical law courts, which strictly speaking are based on the laws of a foreign power, Vatican City?

    Another thing to ponder. Take this bit:

    … any foreign 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 United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.

    If the word “foreign” is interpreted as applying only to “law”, and this statute is applied to legal codes or systems regardless of whether foreign or domestic, how would that play out with a United Methodist or Southern Baptist religious court that attempts to punish or defrock a minister for doctrinal reasons? Both the US and (surprisingly) Kansas constitutions allow for freedom of conscience: would the state be required to overturn a religious court if they fire a cleric for doing a same-sex blessing?

    If not, then could a case be made about denominational laws being rooted in foreign systems? After all, the doctrine of the Trinity was esablished at the First Council of Nicaea and the First Council of Constantinople, both in the Middle East and neither with American Christians. Then there is the matter of Jesus himself being a foreign national.

    It will be very interesting to watch how this will play out. Who wants butter on their popcorn?

  6. christophburschka says

    Any … decision shall … be void and unenforceable if the … administrative agency bases its rulings or decisions in the matter at issue … on any … legal code … that would not grant the parties affected by the ruling or decision the same fundamental liberties … including … any right of … marriage.

    Yay – Kansas legalized gay marriage! This should be celebrated!

  7. Gregory in Seattle says

    @No Light #3 – The plural of bet din (“house of judgement”) is battei din; the modifier is a genetive phrase, not an adjective, so it does not change number. Not to be pendantic or anything.

  8. d cwilson says

    Some interesting questions from jerthebarbarian and slc1. My guess is that because the courts have given churches wide latitude to govern their internal affairs and doctrinal issues, the law would not apply to issues of like defrocking priests or granting annulments. This assumes that “Any court, arbitration, tribunal or administrative agency” only applies to state or municipal courts and not any kind of church or rabbinical court.

    Of course, it could be interesting if the Catholic Church’s court shuffles a sex offender around and one of his victims sues to force the church to turn him over to the legal authorities.

  9. frankboyd says

    Well you _could_ use this as a precedent to oppose religious legislation in the future… but I’m sure your fondness for Islam rules that out.

  10. KG says

    Frankboyd demonstrates yet again what a complete fuckwit he is. Ed has expressed his opinion that the law is constitutionally legitimate (although largely unnecessary because of the way the courts already operate), and could indeed be used to protect individuals from unjust decisions by religious tribunals – including Muslim ones. Neither he nor anyone else has shown any “fondness for Islam”, either in this thread, or in any other I’ve seen on this blog. But frankboyd is a bigot, and so unable to distinguish between “fondness for Islam” and “defence of the civil rights of Muslims”.

  11. dingojack says

    Uh – how does a church defrocking a priest, granting an annulment and etc. violate the US or Kansas Constitutions exactly?*
    Oh and Frank – go and play with your toys, there’s a good little boy, the grown-ups are talking now.
    Dingo
    —–
    * If it doesn’t, then this law won’t apply

  12. dingojack says

    I wonder if Frank’s ever read coversations with SLC about Iran. The latter is a real hardcore Islamophile, right Cranky?. @@
    Dingo

  13. TGAP Dad says

    I would just LOVE if this law were interpreted by the Kansas courts as applying to the oppressive corporate-sponsored binding arbitration proceedings and the binding arbitration agreements that people at various times are coerced into signing. I suppose it depends on the interpretation of the word “foreign.” If foreign could be interpreted to mean foreign to the normal process by which we write and enact our laws, as oppoosed to originating in another country. (I mean, it applies to Islamic law being imposed, even if the ones interpreting and enforcing it are Americans and, presumably, Kansans.)

  14. slc1 says

    Re dingojack @ #13

    I am sure that Mr. dingo really meant Islamophobe, not Islamophile.

  15. says

    If I’m reading the law correctly, I don’t think it will have any effect on Catholic canonical courts granting annulments or defrocking a priest, or Rabbinical courts granting gets and the like, unless those decisions violate the explicit rights of one of the parties. In the vast majority of cases, they would not do so. In cases involving purely intra-religious disputes, like defrocking a priest, the courts would not step in at all due to the First Amendment.

  16. michaellatiolais says

    As a person currently stuck in Kansas(I refuse the moniker “Kansan”), I can tell you that the main sect which will run afoul of this would be the Amish. There is a large contingent nearby, and this may be the firepower needed to end their practice of “encouraging” girls to drop out of school as soon as legally allowed. Of course, there are plenty of Christian idiots in power here(see our dipshit governor, Brownback), so they will probably just ignore the problem in favor of histrionics about “dem muslims.”

  17. dingojack says

    SLC – Nope. Read it again. With your sarcasm filter on this time.
    TGAP Dad – Hmmm, interesting. If the company is a multinational based in a foreign country, and a ‘Commercial in Confidence’ agreement was drawn-up in that foreign company that prevented a person disclosing harmful actions by said multinational company in Kansas….?
    Dingo

  18. matty1 says

    The way I see religious divorce is like this. Suppose you have an elderly relative who you love dearly, even though they’re not all there. In fact you love them so much that you want them to approve of everything you do including your decision to divorce. The Cannon Law court or Bet Din is just a more formal version of that relative, you don’t need their approval and they have no way to force you to seek it but plenty of people do, because they care what Great Uncle Yahweh* thinks of them.

    * I call dibs on the band name.

  19. Gregory in Seattle says

    @dingojack #12 –

    How does a church defrocking a priest, granting an annulment and etc. violate the US or Kansas Constitutions exactly?

    The function of a sharia court — and a bet din and a church tribunal — is to handle issues that arise out of religious law rather than civil law. In this regard, the law that Ed mentioned is irrelevant.

    Most of these courts also function as voluntary arbitration committees, where members of the religious community who have a non-legal dispute with one another can go to have their dispute resolved. Participation in this arbitration is (theoretically) voluntary and any decision is legally binding if and only if all parties to the dispute agree to abide by it. In this regard, the law that Ed mentioned is also irrelevant.

    Now, states allow, and some states require, that divorce settlements be handled through arbitration rather than through the civil court system. Because they are technically private arbitration committees, religious courts have long been allowed to handle this arbitration. Sharia courts and bettai din, based on Muslim and Jewish religious law respectively, are notorious for favoring the husband and leaving the wife with absolutely nothing: no property, no alimony, no child support (assuming she is even allowed to see the children, much less raise them.) A law like this would allow the woman or other party who was coerced into “voluntarily” submitting to arbitration under the standards of religious dictates to seek legal remedy and overturn the arbitration. In this regard, the law would actually do some good.

    The problem is that the law’s phrasing is very vague. It cannot specifically target sharia alone: that would be discrimination and the courts would have little choice but to overturn it. Because the language so broad in an effort to keep it constitutional, in theory it can be applied far beyond its presumed intent. So a United Methodist bishop is deposed by a church council for allowing parishes under his supervision to conduct same-sex blessings: were his rights under the US and Kansas state constitutions violated by his being fired for exercising his conscience? If so, the decision of the religious court is null and void.

    Like I said, it will be interesting to see how this plays out.

  20. dingojack says

    Gregory in Seattle* – In the cas of this hypothetical deposed bishop:
    a) Has the Government attempted to impose a relgion on him? Has his speech (verbal written or symbolic) been suppressed by the government? Is he prevented from peacably assembling? Is he being denied the right to partion the government with his greivances?
    b) Is he being denied the right to bear arms?
    c) Is he being forced to quarter and/or feed troops without his permission or in accordance with the law?
    d) Has he had his person or propety searched without reasonable cause?
    & etc.
    Dingo
    —–
    * Is Seattle a nice place to live? I’ve always kind of liked the look of it.

  21. says

    An even more egregious offense in Kansas, Governor Brownback signed a bill into law granting “conscience” exemptions to pharmacists who don’t want to fill birth control prescriptions. But of course, there is no Republican War on Women.

  22. d cwilson says

    tommykey:

    The new law also encourages doctors to withhold information from their patients if doing so would prevent an abortion.

    But you know, small governmet, no war on women, yadda yadda yadda.

  23. fastlane says

    Raging Bee @ 1:

    Do they have a law restricting access to birth-control or abortion based on Biblical principles?

    Amusingly enough, Dumbfuckistan Governor Sam Brownnose just signed a law allowing pharmacists to not dispense BC pills for religious reasons. Someone needs to put these two conflicting laws to the test!

    dingojack @ 12:

    Oh and Frank – go and play with your toys in traffic, there’s a good little boy, the grown-ups are talking now.

    FTFY

    jerthebarbarian @4:
    There are some very large Amish/Mennonite communities in KS. This is going to be fun to watch.

    michaellatiolais @17

    As a person currently stuck in Kansas(I refuse the moniker “Kansan”).

    I feel your pain. I refer to the 7 years I spent there as doing time. I’m now happily living in the Pacific Northwest.

  24. Fred5 says

    Ed,

    Would you please explain where exactly you got your quote for this article from.

    The bill that you link to only says this:

    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 the matter at issue in whole or in part on any foreign 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 United States and Kansas constitutions.

    And doesn’t include the phrase:

    …including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.

    Just wondering.

  25. JustaTech says

    @dingojack @21: While I can’t speak for Gregory, I think Seattle is nice. It rains a lot, but there aren’t many snakes, and while we do have spiders, they tend to be quite small (coin-sized) and generally non-venomous. Not too hot, not too much snow, the people tend to be distantly friendly and a bit passive agressive. It’s liberal without being totally hippie-crunchy.

    And we don’t pass stupid-ass laws like this!

  26. Gregory in Seattle says

    @JustaTech #26 – And when we do (as we did with the state’s Defense of Marriage Act in 1998) we generally realize the error of our ways and eventually repeal the stupid-ass laws (as we did with the state’s Defense of Marriage Act in April, the first state to do so without a court order.)

    @dingojack #21 – I was considering the fact that the hypothetical bishop was deposed — i.e. fired from his job — on the grounds of moral conscience. That would be illegal under federal and (I would expect) Kansas law. Like I said, it will be interesting to see where it leads.

    As for Seattle…. Winters can be pretty dreary but the summers are glorious. We get snow, but not a lot (and many years, none in the city itself) and summer highs are typically in the mid to upper 70s, occasionally into the 80s, and rarely above 85. Seattle is expensive, though: I pay $1230 for a two bedroom apartment near downtown. The food culture is decent, the music scene is varied, and we are consistently ranked among the least religious areas of the United States. Traffic can be a problem, but our public transit system is not bad. Jobs can be difficult to find, though, same as in most urban areas.

    Western Washington has an overabundance of natural beauty, between the Cascade and Olympic mountain ranges, the Puget Sound, huge evergreen forests, rivers, waterfalls, hot springs and one of the last remaining deciduous rain forests in the world: if you like to hike, bike, camp, hunt, fish or just sit in a nice park, you’ll love it here.

  27. Gregory in Seattle says

    @dingojack #21 – Added to say: If you want to learn more about the Seattle area, Jen McCreight (Blag Hag) and Dana Hunter (En Tequila Es Verdad) both live here, P.Z. Myers (Pharyngula) grew up and went to college nearby, and Crommunist (The Crommunist Manifesto) lives just over the border in Vancouver, BC. Dana frequently posts wonderful pictures of her wandering around Washington and Oregon.

  28. raven says

    The new law also encourages doctors to withhold information from their patients if doing so would prevent an abortion.

    That is blatant malpractice. As well as practicing medicine without a license or a brain.

    Medicine is a fee for service business.

  29. d cwilson says

    That is blatant malpractice.

    It’s not malpractice if it has the blessing of state law.

    But it would be highly unethical to lie to your patient about serious, perhaps even life-threatening complications.

  30. raven says

    It’s not malpractice if it has the blessing of state law.

    Yeah it is. I don’t care if it is legal or not, it is blatant malpractice. You are paying an MD for a service.

    I doubt if it is even legal either but that is another subject and I’m pressed for time right now.

  31. frankboyd says

    I wasn’t talking about Ed, because he has some principle in him, but about you. “Fondness” is my attempt to politely describe what actually is your relationship to it. Craven cowardice. Myers caved like a child’s sandcastle during the cartoons crisis, and I can see plenty of fools already scurrying to whitewash what Sharia is.

  32. KG says

    You’re a liar and a fool as well as a bigot, frankboyd. When a commenter uses “you” in a comment without making explicit who “you” is, it’s clear they are referring to the OP. Nor do you give any examples of people whitewashing sharia. Nor will your diversionary tactic of a reference to “Myers” fool anyone; no-one called “Myers” has commented on this thread.

  33. dan4 says

    @32: If your “fondness for Islam” comment wasn’t directed towards Ed Brayton, then who WAS it directed towards?

  34. rebeccaaltes says

    Worth noting: That foreign book, the Bible wasn’t written here, but the Book of Mormon was. So look for Kansas to be legalizing polygamy shortly.

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