veiled4allah

establishing a religion in America?

The First Amendment to the U.S. Constitution has two clauses that deal with religion, "Congress shall make no law respecting an establishment of religion" and "or prohibiting the free exercise thereof". If it only contained the Establishment Clause, then the government could theoretically ban all religions equally. If instead it only contained the Free Exercise Clause, then the U.S. could have an established religion as long as it didn't limit the rights of members of other religions. What exactly does "establishment of religion" mean?

The cases indicate that government does not exceed the restraints of the Establishment Clause unless it is acting on topics that are inherently religious... "Inherently religious," then, means those exclusively religious activities of worship and the propagation or inculcation of the sort of tenets that comprise confessional statements or creeds common to many religions. The term includes, as well, the supernatural claims of churches, mosques, synagogues, temples, and other houses of worship, using those words not to identify buildings, but to describe the confessional community around which a religion identifies and defines itself, conducts its collective worship, divines and teaches doctrine, and propagates the faith to children and adult converts. (source; author Carl H. Esbeck) Specific examples of "inherently religious" activity (as determined by the Supreme Court) include:

prayer, devotional Bible reading, veneration of the Ten Commandments, classes in confessional religion, and the biblical story of creation taught as science... resolv[ing] doctrinal questions or related matters bearing on ecclesiastical polity, clerical office, or church discipline and membership It does not include issues of morality:

the Establishment Clause is not violated when a governmental restriction (or social welfare program) merely reflects a moral judgment, shared by some religions, about conduct thought harmful (or beneficial) to society. Accordingly, overlap between a law's purpose and the mores of well-known religions does not, without more, render the law one "respecting an establishment of religion." Legislation concerning Sunday closing laws and teenage sexual abstinence counseling, laws that limit the availability of abortion, and rules on interracial dating and civil marriage are subject matters that the Court has deemed not inherently religious... ...moral and ethical questions are still proper objects of legislation. Whose morality will dominate the republic at any point in time and hence be reflected in the positive law of the nation is not predetermined by the Establishment Clause. That determination is left for the making based on who has the more persuasive argument in the marketplace of ideas, as well as the organizational acumen to promote it. That is, the fact that a law reflects the moral judgment of a particular religion or even is derived from a Scriptural text does not make it an establishment of that religion. To put this in clearer terms, if society comes to think that lashing is a suitable punishment for those who complete the act of sexual intercourse in public, then Congress can enact lashing as a punishment, even though this happens to be a feature of Islamic law. The Constitution would not consider this an "establishment" of Islam. Given that Islamic law (and also Jewish law for that matter) deals with many matters that are not "inherently religious", the Constitution would allow quite an extensive implementation of the Shari'a IF Muslims can succeed in promoting Islam in the "marketplace of ideas". Food for thought...

or, 'everything I know about law, I learned from listening to The Clash'

Are you a punk rock fan and a law nerd? Check out No Justice Tonight by Dean Falvy. A sample quote: The range and depth of The Clash's commentary on law and justice humbles that of just about any other rock band. (It also happens to compare favorably to the written output of many tenured legal scholars.)

IANAL (I am not a lawyer)

Disclaimer: The following should not be construed as legal advice or opinion. It's just an argument that I worked up, because I'm a law nerd. The word "attainder" is defined as: the extinction of the civil rights and capacities of a person, consequent upon sentence of death or outlawry; as, an act of attainder (Reference: Webster's Revised Unabridged Dictionary). "Outlawry" is: the putting a man out of the protection of law (Reference: Webster's Revised Unabridged Dictionary). In medieval times, a judgment of outlawry meant that the person's property was confiscated by the king and that he could subsequently be killed with impunity; that is, the killer would face no penalty (Source: Guide to Medieval Terms under "outlawry"). Combining these two definitions, we can say that a "bill of attainder" is: a law or decree that sets as a penalty the confiscation of property or the stripping of civil rights, or that declares that a person or group of people may be punished or put to death without due process of law. (Cf. Definition given by the Bill of Attainder Project: "A bill of attainder is a law, or legal device, used to outlaw people, suspend their civil rights, confiscate their property, put them to death, or [otherwise] punish them without a trial") The Sixth Amendment to the U.S. Constitution lists the following as necessary elements of "due process of law":

• a speedy and public trial
• an impartial jury in the state and district where the crime was committed
• that the accused is informed of the nature and cause of the accusation against him
• that the accused may confront the witnesses who are testifying against him
• that the accused may obtain witnesses to testify in his favor
• that the accused has the assistance of counsel for his defense

The question: Is an executive order declaring a person to be an "enemy combatant" who can be held indefinitely without access to legal counsel and without being informed of the charges against him or being able to call witnesses in his own defense, and who would be tried by a military tribunal rather than an impartial jury in a public trial, a bill of attainder? Based on the above suggested definition of bills of attainder, I believe that it may be. Given that Article I Section 9 Paragraph 3 of the U.S. Constitution forbids bills of attainder, these executive orders declaring American citizens such as Jose Padilla and Yaser Hamdi to be "enemy combatants" may be illegal and unconstitutional. The issue is whether a bill of attainder only refers to punishment or putting to death "without a trial" or if it includes punishment or putting to death "without due process of law". N.B. This is not the only argument by which the executive orders may be unconstitutional (see War and the Constitution), but it's one that occurred to me while reading about bills of attainder. If any of my visitors have thoughts on this issue, I'd be glad to hear them.

law nerd!

I got my first research assignment back. I was the only person in the class to get a perfect mark on it :D All praise is due to Allah SWT!

right to keep and bear arms

There's been a lot of debate about gun control lately because of the sniper. The entire debate of course centers around what exactly the Second Amendment to the Constitution means. I've read several interesting articles that say that the intent and purpose of the "well-regulated militia" mentioned in the Amendment is to secure the freedom of the people against a tyrannical government. In other words, the Second Amendment provides a way for the American people to rebel against their own government if the government uses its power (and its standing army) to take away their rights. This is certainly not the way the debate is usually framed today, by either side.

What do you think about the gun control issue? Do you own guns for use in hunting or self-protection, or would you be interested in doing so? Or do you think that only police, military and similar people should be allowed to own and use firearms and that in the course of their duties? And what do you make of the "guns as a protection against governmental tyranny" argument I've mentioned? I do hope my visitors will post and share their thoughts on this issue.

legal tidbits

Today in my Civil Procedures class we had two court reporters as guest speakers. It was really fascinating to watch what they did. What they type into the machine is a kind of shorthand that is completely undeciperable to an outsider, it looks like little more than random letters. In the past, court reporters then had to transcribe their shorthand into regular English. Now they have special software that converts it for them, in real time. The transcription machine was hooked up to a laptop and we could see the shorthand appear on the screen as the lady typed, and then the conversion into English. Good court reporters can type more than 225 words per minute. Admittedly, the shorthand means that they can type two or three times as many words in the same space as regular typing but for comparison, secretarial jobs tend to ask for around 60 words per minute.

Meanwhile, in my Contracts class we looked at a case from 1964 in which the court upheld a Texas law that stated that married women were not competent to enter into contracts on their own. The judge writing the opinion said that it would be no more reasonable to ask a married woman to uphold her contract than a child or someone mentally handicapped :deathstare:

physican-assisted suicide

In my Legal Research class we have to research Oregon's 'Death with Dignity' Law which allows physicians to help terminally ill patients who have requested it to end their own lives. John Ashcroft has been trying to strike down this law, so in addition to the questions raised by the law itself about suicide and the role of the physician, Ashcroft's actions have also raised questions about whether the executive branch of the federal government has the right to overrule a law that the people of the state have chosen to enact. The courts do have the right to overturn laws that are unconstitutional, but what about the Department of Justice? I am deeply concerned about Ashcroft's behavior in general. His actions have clearly shown that he has little regard for the Constitution and the limitations on government power that it prescribes, and that he will take action to circumvent it whenever he feels the need. Considering that he holds a position where he is supposed to uphold the laws and the Constitution, this is very disturbing.

As to the law itself, as a Muslim, I believe that suicide is wrong and a grave sin. Although at times our pain (physical or emotional) can be so great that all we want is for it to end, we should try to keep enduring the best we can. Enduring afflictions with patience and trust in God will bring about a great reward (i.e., Paradise), next to which the sufferings of this life are as fleeting as a nightmare. Additionally, I feel that doctors have a moral responsibility not so much to "reduce suffering" but rather to help preserve the life and health of their patients as much as possible. There is an argument to be made for choosing not to take "extraordinary measures" to prolong a person's life if they would remain in a vegetal state. But actively doing something to end a life is different.

The actual assignment is not to discuss what to do about physician-assisted suicide, but simply to prepare a two-page report on what the existing laws and court decisions are and the current status of the measure. Whether we want to bring a case to challenge the constitutionality of Oregon's law or whether we want to challenge Ashcroft's actions, we have to know where we stand. As the class goes on, we will learn more about how to proceed with preparing a case for trial (though I'm sure we won't be studying this particular issue all quarter; she just chose it because it's well-known and there's a lot of information available on it, and to make it interesting)

law nerd's delight

OK, I'm the only law nerd around here, but since it's my blog, you'll have to put up with it :p

Here are links to a whole bunch of articles by lawyers and law professors in which they take aim at the Bush Administration's tactics in the "war on terrorism". These are people who know the law telling us that Bush doesn't really.

The Bush Administration and Secrecy

A Defensible Execution?

Dragnet Law Enforcement That Won't Work

Good and Bad Terrorism?

The Government's Fear of Lawyers

Hamdi, Lindh, Terrorism and the Courts

Indefinite Detention Based on Suspicion, Not Fact

Indefinite Detention of Terrorism Suspects

Indefinite Detention on Guantanamo

Indefinite Detention: Using Outdated Precedents to Defend Unjust Policies

O.J. and Osama: Is Fear of a Show Trial Justification for Military Commissions?

Our Many and Varied Wars Against Terrorism

The Problem With Playing a Blame Game about 9/11

Revenge, Retaliation and Collective Guilt

We Don't Need Citizen Spies

What is the History and Value of the Case Sited to Support Military Tribunals?

What is the Legal Status of Guantanamo Detainees?

When Belonging to a Group is a Crime in Itself

When is a Member a Conspirator?

Who Decides Who Is an Enemy Combatant?

Why Ashcroft's Plan to Create Internment Camps for Citizens is Shocking and Wrong

Why the F.I.S.A. Court was Right to Rebuke the Dept. of Justice

good things that lawyers can do

In my civil litigation class, our term project will be to write up an analysis of a case. I'm thinking of doing a civil rights case, perhaps one involving Muslims.

Today in class we learned how to do legal research in the library and I got a chance to look at an online legal database. With a little work I was able to find some well-known cases like John Walker Lindh and Yaser Hamdi. I probably won't do a case that large and complicated for my paper but the idea came to me to find a case in which a Muslim was suing for his civil rights, inshallah.

Sometimes we think of lawyers as the "bad guys" but lawyers are also the ones that you go to when you want to stand up against injustice.

civil rights law

One of the electives offered fall quarter in the paralegal program is a course on civil rights law. My advisor recommend that I take it and I think that I may do so, inshallah. My mom meanwhile was wondering if there are any Muslim lawyers in this area who specialize in helping Muslims navigate the American legal system. This is something work looking into, inshallah. And civil rights is an increasing important area for Muslims and Arabs, may Allah SWT help us all.