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Saturday, November 12, 2011

Dispelling the Sharia Threat Myth

http://apps.americanbar.org/cle/programs/t11dst1.html

Dispelling the Sharia Threat Myth:

Implications of Banning Courts from Referencing Religious, Foreign, or International Law


Date: Wednesday, December 7, 2011
Format: Live Webinar and Teleconference
Duration: 90 minutes


In the last year nearly 50 bills and state constitutional amendments intending to ban state courts from considering international, foreign, or religious law were introduced in more than 20 states.   Such provisions—commonly referred to as "Sharia law bans" or "anti-Sharia law legislation"—have already passed in Oklahoma, Tennessee, and Louisiana.

Once adopted these bans have the potential to obstruct state courts from performing essential functions including enforcement of commercial contracts, intra-country adoptions, foreign marriages, Native American rights, foreign, judgments, and the outcome of voluntary faith-based dispute resolution forums as well as efforts to thwart child abduction. The provisions also have serious implications for individual rights under the free exercise clause of the First Amendment. 

Our panel will discuss the origin of these bans, their potential impact on how state courts function, and efforts to combat the provisions in legislatures and the courts.


    Do we really want Islamic commercial law to be enforced in our courts? To be Shari'ah compliant, Zatat of 2.5% is required on financial transactions. 12.5% of Zakat must be paid to those "fighting in Allah's cause".  Zakat paid on Shari'ah compliant investments, insurance, annuities & mortgages will be used to finance terrorism. Wasn't that what the Holy Land foundation trial was about? Reliance of the Traveller, Book H codifies the law of Zakat.

h8.17 The seventh category is those fighting for
Allah, meaning people engaged in Islamic military
operations for whom no salary has been allotted in
the army roster (0: but who are volunteers for
jihad without remuneration). They are given
enough to suffice them for the operation, even if
affluent; of weapons, mounts, clothing, and
expenses (0: for the duration of the journey,
round trip, and the time they spend there, even if
prolonged. Though nothing has been mentioned
here of the expense involved in supporting such
people's families during this period, it seems clear
that they should also be given it).

    Several of the cases described in http://www.shariahinamericancourts.com involve divorce and child custody.  Islamic laws of marriage & divorce are codified in books M & N of Reliance of the Traveller Do you really want those laws enforced in our courts?

    Shari'ah empowers the father of a pre-pubescent virgin girl to compel her to marry the man of his choice.  How does that square with our age of consent laws?  Should a girl be allowed to choose her own mate, and wait until she is sufficiently mature to make the decision? 

m3.13 Guardians are of two types, those who
may compel their female charges to marry someone,
and those who may not.
(1) The only guardians who may compel
their charge to marry are a virgin bride's father or
father's father, compel meaning to marry her to a
suitable match (def: m4) without her consent.

    Shari'ah allows a Muslim to divorce his wife by repeating "I divorce you." three times, it is quick and simple.

n3.1 The words that effect a divorce may be
plain or allusive. Plain words effect the divorce
whether one intends divorce by them or not, while
allusive words do not effect it unless one intends
divorce by them.
n3.2 Using plain words to effect a divorce
means expressly pronouncing the word divorce
(0: or words derived from it). When the husband
says, HI divorce you," or "You are divorced," the
wife is divorced whether he has made the intention
or not.
(A: Here and in the rulings below, expressions
such as "The wife is divorced," or "The
divorce is effected," mean just one of the three
times (def: n9.0(N:» necessary to finalize it,
unless the husband thereby intends a two- or
threefold divorce (dis: n3.5) or repeats the words
three times.)

    The Shari'ah of support could be an important consideration in divorce cases.

m 11.1 0 As for a woman in her postmarital waiting
period (def: n9), she is entitled to housing during
it no matter if it is because of her husband's death,
a divorce in which the husband may take her back,
or a threefold, finalized divorce. As for her support
(A: in terms of food) and clothing:
(1) it is not obligatory to provide her with
it during the waiting period after (N: a threefold
divorce, a release for payment (def: nS), or) her
husband's death;
(2) it must be provided in the waiting period
of a (A: not yet threefold) divorce in which her
husband may take her back;
(3) and if a woman in the waiting period of a
threefold divorce is pregnant, she is given support
each day (A: until the child is born, after which
she is entitled to support and wages for taking care
of it), but if not pregnant, she is not entitled to
support.

    In matters of child custody, which parent is better qualified to have custody?  Islamic law might not meet your expectations.  Custody is a function of age and religion.

m13.5 When a child reaches the age of discrimination
(0: which generally occurs around seven or
eight years of age) he is given a choice as to which
of his parents he wants to stay with (0: since the
Prophet (Allah bless him and give him peace)
gave a young boy the choice between his father
and his mother. The child is only given such a
choice when the necessary conditions for child
custody (def: m13.2) exist in both parents. If one
of them lacks a single condition, then the child is
not given a choice, because someone lacking one
of the conditions is as though nonexistent).
If the child chooses one of the parents, he is
given to the care of that one, though if a son
chooses his mother, he is left with his father during
the day so the father can teach him and train him.

    What if the father is Muslim and the Mother is Christian? 

m13.2 The necessary conditions for a person to
have custody of a child are:
(a) uprightness (def: 024.4) (0: a corrupt
person may not be a guardian, because child care
is a position of authority, and the corrupt are
unqualified for it. Mawardi and Ruyani hold that
outward uprightness (def: m3.3(f) is sufficient
unless there is open wrongdoing. If the corruptness
of a child's mother consists of her not performing
the prayer (sal at) , she has no right to
custody of the child, who might grow up to be like
her, ending up in the same vile condition of not
praying, for keeping another's company has its
effects);
(b) sanity (0: since a mother uninterruptedly
insane has no right to custody, though if her
insanity is slight. such as a single day per year. her
right to custody is not vitiated by it);
(c) and if the child is Muslim, it is a necessary
condition that the person with custody be a Muslim
(0: because it is a position of authority, and a
non-Muslim has no right to authority and hence
no right to raise a Muslim. If a non-Muslim were
given charge of the custody and upbringing of the
child, the child might acquire the character traits
of unbelief (kufr».

m13.4 A woman has no right to custody (A: of
her child from a previous marriage) when she
remarries (0: because married life will occupy her
with fulfilling the rights of her husband and prevent
her from tending the child. It makes no difference
in such cases if the (A: new) husband
agrees or not (N: since the child's custody in such
a case automatically devolves to the next most
eligible on the list (dis: m13.I)), unless the person
she marries is someone (A: on the list) who is
entitled to the child's c!Jstody anyway (0: as
opposed to someone unrelated to the child, since
such a person, even if willing, does not deserve
custody because he lacks the tenderness for the
child that a relative would have).


    The offspring of a Muslim father must be raised as Muslims. A Christian mother can not obtain custody. If she remarries, she loses custody.  Do you want that Islamic law enforced in our courts? 

    There are many other details that make Shari'ah incompatible with American law. You can read about them in Reliance of The Traveller. Consider the laws of eligibility to give testimony in court.  You can obtain the book from Amazon.com for about $30; it is 1251 pages long including the index. .


    Examine the House Resolution before the Congress. It simply excludes foreign law unless it is explicitly required by the Constitution or federal legislation. 

http://www.govtrack.us/congress/billtext.xpd?bill=h112-973

SECTION 1. USE OF FOREIGN LAW IN FEDERAL COURTS.
Part VI of title 28, United States Code, is amended by adding at the end the following:
‘CHAPTER 183--USE OF FOREIGN LAW IN FEDERAL COURTS
‘Sec. 4201. Limitation on use of foreign law in Federal courts
‘In any court created by or under article III of the Constitution of the United States, no justice, judge, or other judicial official shall decide any issue in a case before that court in whole or in part on the authority of foreign law, except to the extent the Constitution or an Act of Congress requires the consideration of that foreign law.’.


    Michigan House Bill 4769 would ban enforcement of foreign law which abrogates constitutional rights.  Take a close look at its operative provisions.

Sec. 2. A court, arbitrator, administrative agency, or other  
4  adjudicative, mediation, or enforcement authority shall not enforce  
5  a foreign law if doing so would violate a right guaranteed by the  
6  constitution of this state or of the United States.  
7  Sec. 3. (1) If any contractual provision or agreement provides  
8  for the choice of a foreign law to govern its interpretation or the  
9  resolution of any dispute between the parties and if the  
10  enforcement or interpretation of the contractual provision or  
11  agreement would result in a violation of a right guaranteed by the  
12  constitution of this state or of the United States, the contractual  
13  provision or agreement shall be applied as modified or amended to  
14  the extent necessary to preserve the constitutional rights of the  
15  parties. 
16  (2) If any contractual provision or agreement provides for the  
17  choice of venue or forum outside of the states or territories of  
18  the United States, and if the enforcement or interpretation of the  
19  contractual provision or agreement applying that choice of venue or  
20  forum provision would result in a violation of any right guaranteed  
21  by the constitution of this state or of the United States, that  
22  contractual provision or agreement shall be interpreted or  
23  construed to preserve the constitutional rights of the person  
24  against whom enforcement is sought. Similarly, if a natural person  
25  subject to personal jurisdiction in this state seeks to maintain  
26  litigation, arbitration, agency, or similarly binding proceedings  
27  in this state, and if a court of this state finds that granting a  
claim of forum non conveniens or a related claim violates or would  
2  likely lead to a violation of the constitutional rights of the  
3  nonclaimant in the foreign forum with respect to the matter in  
4  dispute, the claim shall be denied.  
5  (3) Any contractual provision or agreement incapable of being  
6  modified or amended to preserve the constitutional rights of the  
7  parties pursuant to the provisions of this section is null and  
8  void. 
9  (4) If a corporation, partnership, limited liability company,  
10  business association, or other legal entity contracts to subject  
11  itself to foreign law in a jurisdiction outside of any state or  
12  territory of the United States, this act does not apply to that  
13  contract. 
14  Sec. 4. This act applies only to actual or foreseeable  
15  violations of the constitutional rights of a person caused by the  
16  application of the foreign law.

    Exactly how does prohibiting the enforcement of foreign law which would violate the Constitutional rights of one party impair a Muslim's right to practice Islam?  Please explain in a comment or document your answer in a blog post and post the url in a comment.  Does the proposed legislation stop him from Iman, Salat, Saum, Hajj or Zakat?   What real harm is done to the Muslim if the legislation deprives him of a frivolous defense against charges of bigamy, marital rape or domestic violence? 

    Must we allow Khalid Sheikh Mohammed & conspirators to assert a defense based on religious obligation and let him get off Scott free because "Allah made me do it."?

    Does anyone comprehend the fact that Muslims present a real, present & persistent danger to our personal and national security precisely because of Shari'ah, which codifies Allah's imperative, threat & promise?  Allah said "fight them";  Shari'ah  says that  if jihad is neglected when possible to perform,  all who knew of it are in sin.  Shari'ah says that "The  caliph makes war upon Jews, Christians and Zoroastrians"...

    Shari'ah's provisions for perpetual conquest may not be tried in our courts, but its child custody provisions have already made an appearance there.  Despite 50 trial and appelate cases in the last 30 years, the ABA assures us that Shari'ah poses no threat.

    The Shari'ah threat can not be exorcised by the magic of legal incantations, it can only be exorcised by expelling Islam and its advocates from our shores.  At present, legislation to exclude Shari'ah from court decisions is the only proximate solution to an insoluble problem.