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If I'm reading your response correctly, you believe that his religous beliefs and practice should supercede the law of the land as defined by the constitution of the state and US government. Seriously???
Uh, no.
Wanting your stuff to be distributed / disposed of after you die in accordance with a specific religious tradition isn't putting that religious tradition above the law. It is practicing that religious tradition within the bounds of the law.
No, but if he wants to specify in his will that his property be divided in accordance with sharia - and the courts can figure out what he meant - then it's probably unconstitutional to not follow his wishes.
SO you are suggesting not that he be allowed to follow Sharia law but that he follow state law and have a will. Nothing preventing that...provided that Sharia law doesnt conflict with state and federal law. There is a reason why general "by law" wills are discouraged. They are vague and for too easily misinterpreted.
I don't know enough about the details of Oklahoma's law to really have an informed opinion, but it sounds like this guy is suing because he wants his property to be divided in accordance with Sharia law. If the Oklahoma law prohibits him from doing that, then I would say yes, it is a violation of his 1st Amendment rights. A will is a legal contract, so if the courts refuse to consider Sharia law even though that is this guy's clearly expressed intent, then it certainly sounds to me like his rights are being violated.
But as I said, I don't know all the details of Oklahoma's law. I was under the impression that all it did was ban judges from citing sharia law in their decisions. If that's the case, it's probably passes constitutional muster. Stupid, yes. But nevertheless constitutional.
Well, I certainly wouldn't advise him to have such a vague passage in his will. Nevertheless, people do it all the time, and the courts generally try to figure out the person's intent as best they can. A state law that specifically singled out sharia for different treatment than other similarly vaguely-worded wills seems like religious discrimination to me.
How much **** do you want to protect under the 1st Amendment? Everything? This is about property, and we have laws on the books about how that happens. Sharia Law has not been passed by a legislative body in the US, so how is IT Constitutional? Please explain.
The only way it would not allow the execution of the will is if it contradicted state law...IE...allows for transfer of property and income without going through the taxation process. Hell...people have left entire estates to animals and the courts dont block it. Nothing prevents the free practice of religion...until of course the free practice of said religion starts to allow for honor killings...beheadings...etc. Of course...such practices would never be allowed in civilized countries...
I agree, it's never been blocked before, as long as everything is legal. But that's what this lawsuit is alleging; this new law WOULD prohibit the courts from following his wishes, point blank, regardless of the legality. If that is the case, the law would violate his freedom of religion.
People have the right to specify in their wills where there property goes, and courts try to figure it out as best they can. For example, I could write in my will to divide it in accordance with the Canon law of the Catholic Church, or in accordance with the neutral arbitration of Judge Smith, or in accordance with the charter of my foundation. Assuming the courts could figure out my wishes, they would do so.
To treat "in accordance with sharia law" as different than those other things would seem to be blatant religious discrimination.
What specific provisions of Sharia would be in conflict with the law of the land?
I agree, it's never been blocked before, as long as everything is legal. But that's what this lawsuit is alleging; this new law WOULD prohibit the courts from following his wishes, point blank, regardless of the legality. If that is the case, the law would violate his freedom of religion.
Its law based on religion -- thus, all of it.What specific provisions of Sharia would be in conflict with the law of the land?
If his will doesn't follow the correct forms, then his estate will be distributed according to probate law, just like any other ineffective will would be. That doesn't violate his religious freedom.
Why do you think it would prohibit the court from following the individuals request? What specific provisions of Sharia would be in conflict with the law of the land?
Specifying a form that contradicts his religion would be a violation of the 14th Amendment. Unless it involved killing someone or stealing or something.
Equal protection under the law.
Are you really unaware that women's testimony is not worth that of a man under sharia?
I don't necessarily think it would; I haven't read Oklahoma's law. But that's what the lawsuit alleges...that the new law would prohibit the court from following his wishes even if none of the provisions violated the law. If that's the case, it certainly sounds like discrimination.
Why do you think it would prohibit the court from following the individuals request? What specific provisions of Sharia would be in conflict with the law of the land?
I agree that it is unconstitutional, but it's not a violation of the first amendment. It's a separation of powers issue. The critical flaw of this legislation is in limiting the law the courts can look to in forming a decision. If you take this law on its face it even rules out judicial reference to English common law cases. "International" law is the very basis of our system of law.
It's not just racist, it's legally frivolous.
Oklahoma can define its courts and their jurisdictions however it wants, particularly within its own constitution. There's no conflict with the federal Constitution over that. There's no "separation of powers" issue, either -- the state constitution is the ultimate authority over all branches of government. Not that there would be even if it were a mere act of the state legislature, because that's how it's done.
In fact, do you have any idea what body the US Constitution itself granst the power to define the jursidiction of federal courts and all of their rules? (Hint: it isn't the Supreme Court.)
(Bonus question: there is a state which quite specifically does NOT have a commonlaw system, English or otherwise. Which state is that, and why is this so?)
Your answer is at cross purposes with the point. If Oklahoma's court appropriates authority that relates to foreign relations, it might have overstepped its bounds.
At best, their right to order their courts gives them a case. The ability to order your courts does not mean, for example, you can give them the ability to appoint state congressmen. That would violate the Guarantee clause.
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