Too Sooner For Sharia? Oklahoma Legislators Seek To Bar Application of Sharia Law in State Courts

Oklahoma voters will be voting on a curious and troubling constitutional amendment. Labelled the “Save Our State” amendment, State Question 775 seeks to ban the use of Islamic law in state court. Not any other form of religious or international law, just Islamic law. GOP State Senator Rex Duncan wants to protect the state from the ravages of Islamic law despite the fact that there has not been any record of Islamic law ever being invoked in Oklahoma. Indeed, in 2000, there were only 6,000 Muslims in the entire state.

You may remember Duncan from his objections to free Korans being supplied to legislators in addition to free Bibles.

In his latest anti-Muslim effort, Duncan was acting on the fact that a New Jersey legal case in which a Muslim woman went to a family court asking for a restraining order against her spouse claiming he had raped her repeatedly. The judge found that the man was actually following his religious beliefs in demanding his wife’s “spousal duties.” What is missing in the analysis is that the ruling was promptly reversed in New Jersey.

The ruling reversed in S.D. v. M.J.R. (N.J. Super. Ct. App. Div.) was clearly wrongly decided. The husband testified that he forced his wife to have sex — telling her “this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.”

The man was accused of abusing his wife — forcing her to strip naked and abusing her private areas. He then raped her. She confronted him the following morning and asked why he had done what he did to her. His wife stated that he told her:

[by] mak[ing] like a list and he would read the list and he started to say, okay, now you don’t know how to cook, but there’s other stuff you’re going to do in the house, around the house. And when I come back from work, I will see — look at the list and see what you did and what you didn’t do. Whatever you didn’t do, I’m going to punish you the same way I punished you for the stuff that you didn’t do before.

On one occasion, he raped her while her mother-in-law and sister-in-law were in the apartment as she screamed out. When she escaped and stayed with another Moroccan women, she was finally persuaded with help of the local imam to reconcile with her husband after she learned she was pregnant. Immediately after the return to their apartment, he allegedly raped her again.

After raping his wife, the man took his wife to buy a ticket to send her back to Morocco and then took her to a local imam where they were verbally divorced. That Imam later testified:

At the conclusion of this testimony, in response to the judge’s questions, the Imam testified regarding Islamic law as it relates to sexual behavior. The Imam confirmed that a wife must comply with her husband’s sexual demands, because the husband is prohibited from obtaining sexual satisfaction elsewhere. However, a husband was forbidden to approach his wife “like any animal.” The Imam did not definitively answer whether, under Islamic law, a husband must stop his advances if his wife said “no.”

The judge found that the defendant had engaged in harassment but that she had not proven criminal restraint, sexual assault or criminal sexual contact. The court held:

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.

The trial judge referred to the period of the alleged rapes as “a bad patch” in the marriage and not enough to warrant a restraining order since they were now divorced.

The court reversed in this opinion.

The appellate court rejected the “cultural defense” — the claim that the man’s religion should be considered to rebut the element of intent. Ironically, that is the subject of my panel in Paris next week — and part of a series of presentations made to judges and lawyers around the country on validity or role of such cultural defenses in criminal or civil cases.

In the appellate decision, the judges rejected the cultural defense:

The judge’s ruling raises several areas of concern that we regard as warranting reversal and a remand to permit the entry of a final restraining order. We construe the judge’s characterization of the violence that took place as a bad patch in the parties’ marriage and plaintiff’s injuries as not severe as manifesting an unnecessarily dismissive view of defendant’s acts of domestic violence. Although it is true that the November episodes spanned only three weeks, that period constituted approximately one-fourth of the parties’ marriage. Moreover, we find it significant to the issue of whether a final restraining order should have been granted that the violence resumed on the very first night of the parties’ reconciliation, and after defendant had assured the Imam that he would not engage in further such acts. We additionally note plaintiff’s testimony that the significant bruising to her body shown on the photographs taken on November 22 merely represented the remnants of the bruising inflicted on November 1 and 16. In our view, the abuse that took place in this case was far removed from the domestic contretemps found not to constitute abuse in cases such as Kamen v. Egan, 322 N.J. Super. 222, 227-28 (App. Div. 1999); Corrente v. Corrente, 281 N.J. Super. 243, 248-50 (App. Div. 1995); and Peranio v. Peranio, 280 N.J. Super. 47, 54-56 (App. Div. 1995). We are also concerned that the judge’s view of the facts of the matter may have been colored by his perception that, although defendant’s sexual acts violated applicable criminal statutes, they were culturally acceptable and thus not actionable — a view that we have soundly rejected.

Thus the conclusion of the case was the rejection of this type of use of the cultural defense. Yet, that is the basis for Duncan’s resolution with his co-sponsor Republican Anthony Sykes. Sykes insists “[t]he fact that Sharia law was even considered anywhere in the United States is enough for me.”

Religious views can sometimes be relevant to cases on questions of motive or intent. The cultural defense is often used as mitigating evidence in sentence as opposed to a defense on the merits of the charge. It would violate constitutional law to prohibit only Muslims from citing their religious faith as opposed to other faiths. Indeed, other religions have analogous views of the relative rights of husbands and wives.

A reversed case in New Jersey does not mean the Saladin is coming to capture Oklahoma city.

Source: CNN

27 thoughts on “Too Sooner For Sharia? Oklahoma Legislators Seek To Bar Application of Sharia Law in State Courts”

  1. Blouise: “GOP State Senator Rex Duncan is a media strumpet.”

    Amen to that, he’s just trying to tap into the prevailing anti-Muslim meme on the right.

    Thanks for “strumpet” also 🙂 I was thinking of it just recently and that Dave Barry uses it as a verb: ‘I’ll be in Cleveland this weekend to strumpet my new book.’ He has ‘strumpet updates and schedule’ postings also.

    It’s a great word, used far too little and was my first grin of the day 🙂 Thanks

  2. Bonnie: “…As an American Indian woman, though, I find these religious battles quite amusing.”

    Good posting. While viewing the world through the lens of history it a miracle that more people don’t die of fits of irony-induced laughter. Or weeping.

  3. Bonnie,

    Having spent time (many months) with the Lakota Sioux learning their music which is inexorably tied to their spirituality, it is, hopefully without presumption and with sincere respect, that I agree with the words you posted.

  4. Blouise,

    It’s almost like I do my research before posting.


    I think you missed the point. I don’t really care why you believe Muslims are “upset with the Jews”. Heck I don’t even agree that they are in fact upset with the Jews, or the underlying assumption that Muslims are share a single ethnic background.

    The point is simply this: Just because you believe something, don’t expect the rest of us to. Proof is good, and all holy texts receive equal weight as proof: very little.

  5. Jim:

    The purpose of my remark is to get a religious standard out of the law, courts, and any standard that involves the government. In this country, if a woman is forced to have sex against her will, it is rape. The judge should be disciplined for judicial misconduct and the pol needs to stick his law where the sun will never see it!

  6. The non-native people who came from Europe and settled this land came here for religious freedom. One of the things that these people who were looking for religious freedom did was pass laws making the religions of the various American Indian tribes illegal. Such irony–especially when I see these battles regarding religious freedom today. Most American Indians these days know very little about their native religions because that knowledge has been lost throughout the past 200+ years. We are mostly whatever was the dominant religion of the different geographical areas or whatever relition was practiced at the boarding schools the Indian children were sent to in order to be assimilated. The Dakotas are primarily Catholic; as are the Southwest area tribes. However, the Pacific Northwest was settled primarily by protestants; thus, we are mostly Presbyterian, Methodist, Baptist, etc. I am very proud of my heritage and occasionally tell people who annoy me to get off my land. But, I think what I am more than anything is a 20th Century American Indian woman who was in the trenches during the battles for equal rights for women. And, men like Mr. Duncan just boggle my mind. I have said before that I do not believe that any American woman is going to give up her freedoms for Sharia law. And, any man who isn’t aware of that fact really insults all American women. As an American Indian woman, though, I find these religious battles quite amusing.

  7. Jim: His opinions are no different than yours and mine

    so…a founding Father’s opinion on aspects of the founding has no relevence and is only equal to your or my opinion?

    Jim: I don’t think our founders intended on having Sharia law influence our courts

    right..or Christian law or Jewish law or Hindu law or Shinto law or the law of The Flying Spaghetti Monster (ramen) but then again…who said they did? non-sequitur

    the protections against religious influence on our Government that you decry because it’s your religion are the same ones that prevent Sharia law.

    this guy is grandstanding, this will have the exact same impact as adding “In God We Trust” to our currency

  8. Gyges
    1, October 29, 2010 at 4:45 pm

    Wrong Handmaiden. Thanks for playing though.



  9. Gyges,

    barren wife’s servant family plan

    God never blessed Abraham for that. In fact that is why Muslims are and will forever be upset with the Jews. The blessing cam through Isaac.
    Read what I said above and insult it.

  10. Jim,

    Would that be God’s forcing you to marry your brother’s widow family plan, the selling your daughter into a marriage family plan, or the having a child with your barren wife’s servant family plan?

    What you should realize is that while you’re perfectly free to treat your beliefs as accepted fact the rest of us are perfectly free to disagree. Unless you come up with some proof outside of your interpretation of a holy text, you should probably expect a bit of skepticism.

  11. Scott B

    Jefferson’s letter is irrelevant and widely misunderstood. His opinions are no different than yours and mine. I don’t think our founders intended on having Sharia law influence our courts. Only Muslim extremists embrace such a law and Oklahoma is not going to permit it.

  12. Dredd,

    Who are you to tell God that his family plan is wrong. If Men loved their wives as Christ loved us, and women submitted to their husbands leadership, then the family would be free of divorce. Can’t argue against God.

  13. The “I am not a witch” candidate has said this:

    !O’Donnell’s CNN interview came right after the Southern Baptists took a hard-line, conservative turn at their conference in Salt Lake City. At the meeting, the group added a resolution to their statement of beliefs that said a wife should ”submit herself graciously” to her husband.

    Two days after the conference accepted the resolution, O’Donnell, president of the Savior’s Alliance for Lifting the Truth (SALT), defended the language. Responding to CNN host Mary Tillotson, O’Donnell argued that God designed family structures as such so that wives should be subservient to the leadership of their husbands.

    O’Donnell’s comments according to a transcript of the appearance, found via LexisNexis …”

  14. The essence of making sense out of “make no law respecting an establishment of religion, or prohibiting the free exercise thereof most often comes down to “no crime can be a protected part of any religion”.

    States can define crimes, so that is where the rub usually comes about, as in this case, because rape is a crime under state law.

    So even if it was a religious tenet, the state would not be preventing the exercise of “religion” no matter how “religiously” a man wanted sex.

    What is comical in a sense is that some Christian sects teach the same thing – that women should submit to their husbands – although the degree varies.

  15. “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”
    — Thomas Jefferson, letter to the Danbury Baptists Association, 1802

    The wing nuts want to follow the constitution? Here’s a good place to start!

  16. I was thinking more fact than anything else

    …… and, as a matter of fact, yes, as an acquaintance at one time and, no, as in well enough to be called a friend

  17. I don’t get it!

    As Professor Turley pointed out, a New Jersey family court incorrectly permitted Sharia Law (under the guise of religious freedom) to permit a husband to assault his wife. Even though the appellate court reversed the family court’s decision, it did not stop the family court judge from recognizing it as an affirmative defense.

    I have no problem with an effort to eliminate any judge in Oklahoma from permitting Sharia Law to be used as an affirmative defense. I don’t think any religious law should enable someone to assault or intimidate another.

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