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Mon May 28, 2012, 12:22 PM

States are incrementally banning Sharia Law. What about Orthodox Jewish law?

Women face poverty, opt not to obtain restraining orders, give up their children for a "get" or the "settlement price" is very expensive.


"We consider the withholding of a get a form of domestic abuse,” said Rabbi Jeremy Stern, the executive director of ORA, which is currently working on about 70 agunah cases, the majority of them in the New York area. “Domestic abuse is about control. Abuse is not just about black and blue marks.”

-snip-

“A lot of victims of abuse give up many important rights in order to get a religious divorce,” Nataneli said. “Many women who need an order of protection won’t do it. They are terrified.”

-snip-


In Israel, men who don’t give their wives a get can be thrown in jail. But in the U.S., where civil law has no jurisdiction over religious unions, women have far less leverage.

New York State has passed laws aimed at removing barriers to religious remarriage. But as a practical matter, they have had limited benefits.

-more-

http://www.nydailynews.com/new-york/lost-women-struggle-jewish-divorce-orthodox-husbands-article-1.1085440

66 replies, 8095 views

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Reply States are incrementally banning Sharia Law. What about Orthodox Jewish law? (Original post)
no_hypocrisy May 2012 OP
jberryhill May 2012 #1
aquart May 2012 #11
KamaAina May 2012 #43
aquart May 2012 #2
treestar May 2012 #3
jberryhill May 2012 #4
Bluenorthwest May 2012 #7
jberryhill May 2012 #9
Bluenorthwest May 2012 #10
jberryhill May 2012 #13
Bluenorthwest May 2012 #35
jberryhill May 2012 #40
Bluenorthwest May 2012 #47
jberryhill May 2012 #50
Bluenorthwest May 2012 #54
MADem May 2012 #53
aquart May 2012 #17
jberryhill May 2012 #19
Bluenorthwest May 2012 #38
treestar May 2012 #22
jberryhill May 2012 #31
treestar May 2012 #52
jberryhill May 2012 #55
treestar May 2012 #59
edhopper May 2012 #5
aquart May 2012 #18
Posteritatis May 2012 #66
lunasun May 2012 #23
Rosa Luxemburg May 2012 #6
nadinbrzezinski May 2012 #8
FarCenter May 2012 #12
jberryhill May 2012 #14
cleanhippie May 2012 #15
jberryhill May 2012 #16
FarCenter May 2012 #20
jberryhill May 2012 #24
Nikia May 2012 #60
FarCenter May 2012 #62
nadinbrzezinski May 2012 #21
jberryhill May 2012 #27
nadinbrzezinski May 2012 #49
jberryhill May 2012 #51
Nikia May 2012 #61
jberryhill May 2012 #63
treestar May 2012 #25
jberryhill May 2012 #29
FarCenter May 2012 #37
jberryhill May 2012 #42
cleanhippie May 2012 #28
jberryhill May 2012 #30
cleanhippie May 2012 #33
jberryhill May 2012 #44
cleanhippie May 2012 #57
jberryhill May 2012 #58
jberryhill May 2012 #36
cleanhippie May 2012 #39
jberryhill May 2012 #46
WriteWrong May 2012 #64
jberryhill May 2012 #65
cali May 2012 #26
no_hypocrisy May 2012 #32
cali May 2012 #41
obamanut2012 May 2012 #34
libodem May 2012 #45
mythology May 2012 #48
Initech May 2012 #56

Response to no_hypocrisy (Original post)

Mon May 28, 2012, 12:27 PM

1. The State of New York enforces Jewish law


http://www.agriculture.ny.gov/KO/KOHome.html

The Kosher Law Protection Act of 2004 became law on July 13, 2004. Provisions of the Act pertaining to packaging, advertising, disclosure, record keeping and filing become effective January 9, 2005. Forms will be made available on-line at this web page as of December 1, 2004 or can be mailed to you by emailing kosher@agriculture.ny.gov. Certain filings must be completed at least 30 days in advance of offering or distributing food as kosher in New York State.


-----

And, here's the thing. It's a perfectly reasonable advertising and labeling law. If someone is selling food as "Kosher", then it's no different from laws addressing the sale of "organic", "cage free", "gluten free", "low sodium" and so on.

But just TRY to introduce a "Halal food law" anywhere, and people will go crazy.

These "shariah law" bans only cause uncertainty in the mortgage market, since in states like Kansas, the status of "shariah mortgage" products offered by banks is now up in the air.

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Response to jberryhill (Reply #1)

Mon May 28, 2012, 12:47 PM

11. Shocking though it might be, kosher is not the only Jewish "law."

Nor is New York's Muslim population impressive enough to earn specially-carved districts to get them their own legislators the way NYC finally did for Chinatown.

You will get your "halal" protection laws when the growing Muslim population is strong enough to make it an issue.

Or do you believe Muslims shouldn't have the same journey as every other immigrant group?

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Response to jberryhill (Reply #1)

Mon May 28, 2012, 01:36 PM

43. The state of New York set up a school district just for Orthodox kids

The village of Kiryas Joel in upstate Orange County is home to thousands of Orthodox Jews of the Satmar sect. Most of the kids go to (gender-segregated) shul, of course -- but the inbred nature of the Satmar community has led to a large population of kids with developmental disabilities. And the Satmar parents wouldn't send them to special school in the surrounding district, because of that newfangled coeducation thing.

So the state went ahead and set up a public, gender-segregated school district just for Kiryas Joel! (Did I mention that its residents tend to vote in bloc?) After a court slapped it down, they tried again -- and succeeded.

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 12:29 PM

2. Go ahead.

Be sure to bring it up in meetings. Call for a vote.

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 12:29 PM

3. The "banning" of these types of laws is illogical

I can follow the Catholic law, by choice, and not use birth control. No need for the government to pass a law banning "Catholic Law." Likewise the banning of "Sharia law" is just ridiculous. It will not be enforced where it's not US law, and people can only follow it to the extent allowed here. For instance if Sharia law allows a man to beat his wife, he can't do it here anyway and it's a crime. No need to declare "sharia law" unenforceable.

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Response to treestar (Reply #3)

Mon May 28, 2012, 12:32 PM

4. It's worse than illogical


If I sell pork falsely labeled as "Halal" in Kansas, it is now legal for me to do so.

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Response to jberryhill (Reply #4)

Mon May 28, 2012, 12:36 PM

7. Not really, because you'd need to label the pork as something other than pork

which is in itself illegal, of course. No such thing as Halal pork, just as there is no kosher pork. It is illegal across the country to sell one product labeled as another, so you can not mark pork as lamb or beef, with or without religious connections to the labeling.

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Response to Bluenorthwest (Reply #7)

Mon May 28, 2012, 12:42 PM

9. And that's where you are wrong


In order for a court to find "No such thing as Halal pork", the court has to answer the precedent fact question about whether pork is "Halal". In order to answer that question, the court has to apply shariah law.

If I say my pork is "Halal", and you say my pork is not "Halal", then please explain to me, without reference to Islamic law, the basis by which a court is going to say you are right and I am wrong.

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Response to jberryhill (Reply #9)

Mon May 28, 2012, 12:46 PM

10. Because you have to say it is not pork. Does the law allow one to sell beef as lamb? No.

And also there are jurisdictions with halal specific regulations, the first one was in Ohio at the county level in 2005. And there is no law that allows you to call corn wheat, nor chicken duck, in fact all of that is strictly illegal. There is no such thing as pork which is halal, so in order to pass off a product as halal, one would have to claim it was not pork at all, and that is simply illegal for any reason.

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Response to Bluenorthwest (Reply #10)

Mon May 28, 2012, 12:50 PM

13. Nope, I sell it as "Halal pork"

And there is utterly no basis, absent reference to religious law, for you to assert I am wrong in doing so.

But you are obviously intent on missing the larger point. I can sell any cut of any beef as "Halal beef" too. Because the only way you are going to get to a "mislabeling" issue is by answering the question of whether it is or is not Halal.

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Response to jberryhill (Reply #13)

Mon May 28, 2012, 01:25 PM

35. And what of the jurisdictions with halal laws, which you claim do not exist?

A person claiming they have 'halal pork' would get the same reaction as one claiming they had 'kosher pork'. The words are mutually exclusive. I guess in areas lacking in direct kosher laws, and there are many, one could label lobster kosher and see how that did for them too.
Even if the law allowed such dishonest labeling, and you may be right, it might do that, it is a huge leap to claim you could actually sell that product with halal as a selling point.
And I have not read the KS law, so I don't know what it says. Hard to believe it disallows a functioning definition of any word from the Arabic. Also hard to believe the FDA would allow a State to abandon truth in labeling laws specifically toward a minority religious group.
If the law there demands they pretend words with known meanings do not have meanings I'd not be surprised, it is KS. But it is an absurd stand to take that knowing the meaning of words from another religion is the same as endorsing those religions.
Just as I can't see anyone doing any business trying to sell halal pork, I don't think this sort of thing will work out for these States in the long run. It is crazy stuff any way you slice it.

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Response to Bluenorthwest (Reply #35)

Mon May 28, 2012, 01:32 PM

40. Then you are simply ignorant of the Kansas Law


“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 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.”

This law actually prevents parties from agreeing on private arbitration in a contract on any religious law whatsoever.

In other words, even if you and I agreed in our contract "in the event of a dispute, we will put the question to Rabbi Berkowitz of Temple Beth Bingo", then we lose the right of having that arbitration enforced by a court even though we agree - in the contract itself - to put it to the Rabbi.

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Response to jberryhill (Reply #40)

Mon May 28, 2012, 01:44 PM

47. Gee councilor surly, I said in my post I do not know what that law says. I said you might be right

even. No one here likes this KS law, which I am not sure is actually functioning as yet. It was your choice to say "I could sell halal pork' rather than 'I could falsely label products as halal or as kosher under this law and attempt to foist them off on good people'. I took issue with the implication that such a label would be a selling point to the halal market. I think others did too. I also take issue in your surly words to me when I'd just said 'not read the law, don't know if it is as crazeeee as you claim, could be'. Sort of snippy on your part I think.

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Response to Bluenorthwest (Reply #47)

Mon May 28, 2012, 01:50 PM

50. You've never been "snippy"?

There are people who buy "kosher" not because they are Jewish, but because they believe it is higher quality food.

Hebrew National based an entire ad campaign on this in the 1970's, after various consumer advocates were making an issue out of standards for hot dogs. Maybe you weren't around then, but they had a guy holding a hot dog, looking heavenward, and the tag line, "We answer to a higher authority."

Now, I'm willing to bet you that there were people who bought Hebrew National hot dogs on the basis of that advertising campaign who wouldn't be able to tell you whether or not those hot dogs would be kosher if they contained actual dogs as an ingredient.

If you labeled something as "kosher pork", some nitwit will buy it in the belief that it is somehow better, purer, or whatever. Your faith in the buying public is touching.

Here:



That ad is not directed at people who normally buy kosher.

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Response to jberryhill (Reply #50)

Mon May 28, 2012, 02:04 PM

54. Again, the personal nature of your attacks is not called for.

My faith in the buying public? Look, I and many others on this thread thought you were making a nasty comment about halal eaters. Your wording did that. I posted 'I have no idea what the KS law says' and then you called me ignorant of the law, not just rude but redundant.
I did not say I'd never been snippy, kid. But it is fucking rude to respond to 'I don't know this, and you could be right' with 'you are ignorant'. I'd call that simply out of line and non responsive.

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Response to jberryhill (Reply #13)

Mon May 28, 2012, 02:01 PM

53. All that means is "lawful" pork (or "fit/appropriate" pork).

Now, we know that pork can never be halal, but even if it were, If you don't get the blessing on it during the slaughter, it's not really "Halal."

Also, absent the INFANCA symbol and certification, your title is meaningless.



http://www.ifanca.org/

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Response to jberryhill (Reply #9)

Mon May 28, 2012, 01:00 PM

17. Strangely enough, "halal" housewives won't be buying your "halal pork."

And how insulting to assume they would. Possibly it would help if you actually shopped in a market that sells "halal" food. Any child old enough to read is taught to check the ingredients label.

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Response to aquart (Reply #17)

Mon May 28, 2012, 01:03 PM

19. It was an extreme example


But you really want to avoid the larger question.

Okay, so I sell "Halal beef" which is not Halal. Do you see a legal problem, or do you just want to keep your blinders on?

There are billions of dollars in shariah mortgages in this country. Do you want to kick the legs out from under that table or not?

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Response to jberryhill (Reply #19)

Mon May 28, 2012, 01:31 PM

38. The fraudulent beef example is better for it lacks the I assume unintended implication

that you'd get buyers for 'halal pork' which is contained in the statement 'I could sell halal pork'. Much clearer to say 'I could slap a label on non halal beef and sell it falsely as halal under this law'. It is not your conclusion, it is your example that I and others are taking slight issue with. No leg kicking or blinder wearing. Some hair splitting at most.

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Response to jberryhill (Reply #9)

Mon May 28, 2012, 01:07 PM

22. Are they really applying Sharia law or just trying to come up with a definition?

The matter of labeling something about what it is - can only go so far as people understanding the terms. It's not a fraud if it's true but just some people don't understand the term.

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Response to treestar (Reply #22)

Mon May 28, 2012, 01:23 PM

31. The subsidiary fact question turns on a question of religious law


And, please take off the blinders as to an off-the-cuff example, it is normal, completely normal, for subsidiary fact questions to contain a religious question.

This happened every day during the draft, when people of various religious persuasions would claim "conscientious objector" status.

If you were a Quaker - fine.

If you were a Catholic - you were going to Vietnam.

That sort of question about "what does X religion believe" had real life and death consequences for a lot of young men.

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Response to jberryhill (Reply #31)

Mon May 28, 2012, 01:57 PM

52. But it's still only applying that to a fact question within American law

Kosher pork is a product. I'm trying to discern the difference here. It's not forcing Jewish or Sharia law on Americans in that context. It's like choosing a jurisdiction in a contract.

The legislatures doing the banning act like we are somehow being forced to use the Sharia law and enforce it when it didn't pass our legislatures. Of course it would be impossible to explain that to those behind these laws. But what of such a contract - if the Jewish law is banned, then it takes away from freedom of contract. I have to buy pork that is pork without religious consideration, even if we both agree to it by contract? That would seem to run afoul of most states' first amendments.

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Response to treestar (Reply #52)

Mon May 28, 2012, 02:05 PM

55. The relevant text of the Kansas law....

...would forbid parties from even agreeing to private arbitration and having that arbitration enforced by a court, if the arbitration used religious law:

http://gaveltogavel.us/site/2011/08/08/bans-on-court-use-of-shariainternational-law-aba-house-of-delegates-opposes-blanket-prohibitions-state-legislatures-out-of-session/

KANSAS:


"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 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.”

The Kansas "Sharia Law" ban actually abrogates the right of contract.

I mean, it is absolutely crazy. If a monk enters a monastery by taking a vow of silence, and he is kicked out because he violated that vow, then the Kansas law would say that the vow violated his First Amendment right to free speech. It's just nutty.

That's what contracts DO! They are voluntary agreements to act, or not to act, in a particular way in exchange for consideration. Contracts incorporate religious conditions all of the time, and arbitration is frequently agreed to be conducted by a religious body. What this Kansas law says is, "screw you and your agreement to have arbitration conducted by whom you chose".

It's commercially disruptive.

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Response to jberryhill (Reply #55)

Mon May 28, 2012, 03:41 PM

59. And it could add cases that wouldn't have been filed before

It may not be exactly docket-clogging, as there may not be many such contracts in Kansas. But you'd have cases where people could file saying they don't have to go to arbitration now because the arbitration clauses don't comply with that law. The vague way they've worded it could even cause of flurry of cases in arbitration clauses already written. Some Kansas lawyer is going to say hmm, that arbitration clause seems to have some features in common with Sharia law.

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 12:35 PM

5. Orthodox Jews

often vote for Republicans. Muslims, not so much.

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Response to edhopper (Reply #5)

Mon May 28, 2012, 01:03 PM

18. And your point?

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Response to aquart (Reply #18)

Mon May 28, 2012, 09:54 PM

66. The point is that that's why they aren't being targetted by legislation. (nt)

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Response to edhopper (Reply #5)

Mon May 28, 2012, 01:08 PM

23. one reason perhaps Sharia law is singled out and targeted for ban by repugs

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 12:35 PM

6. What does it say in the constitution?

Laws should strengthened to protect vulnerable groups?

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 12:39 PM

8. What about orthodox any law?

While it s a serious problem, look into orthodox catholic divorces? Oh yeah, they are jst as bad.

The problem with these laws is that they are out of fear of the other. In the 1930s there were plenty of anti Jewish laws all over the United States.

It's best to understand where these come from... Serious.

But orthodox...insert faith here...is about control.

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 12:49 PM

12. All religious law should be banned; Canon Law, Rabbinical Courts, and Sharia Law

The only laws and legal processes should be those of the US government and its secular political subdivisions.

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Response to FarCenter (Reply #12)

Mon May 28, 2012, 12:51 PM

14. So, you agree that courts should not enforce contracts or wills, right?

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Response to jberryhill (Reply #14)

Mon May 28, 2012, 12:54 PM

15. Contracts and Wills are religious laws?

Please, do explain.

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Response to cleanhippie (Reply #15)

Mon May 28, 2012, 12:59 PM

16. Simple

I'm a caterer. I have a Jewish wedding to cater next week. I enter into a contract with you to deliver 100 pounds of kosher beef for $800.

You show up with your truck the morning of the wedding, and you unload the beef. I see a receipt from a non-kosher butcher in your truck.

I refuse delivery of the beef, find another supplier on short notice and it costs me $!000.

I then sue you for breach of contract for $200.

You sue me for $800 for refusing delivery of the beef.

Who wins?

In order for either of us to win the suit, a court is going to have to determine whether the beef was, or was not, kosher. That's a religious question.

If you want to talk real money, then we can come up with an example involving a shariah mortgage, and example of a bequested life estate contingent on religious observance, and so on.

But kosher food is a good example since, in some states, it is the engine of many millions of dollars. Contracts depend on reliable enforcement of that condition every danged day. If you want to say that courts can't get anywhere near "religious questions", then you have a serious disruption of commerce on your hands.

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Response to jberryhill (Reply #16)

Mon May 28, 2012, 01:04 PM

20. Unless kosher is a defined term in the commercial code of the state, it is unenforceable.

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Response to FarCenter (Reply #20)

Mon May 28, 2012, 01:09 PM

24. Hello, and welcome to the thread about "banning" religious law


First of all, perhaps you might consider your comment against the backdrop of the general notions of "banning religious laws". Yes, indeed, if "religious law" is banned, then you aren't going to find it in the commercial code of the hypothetical state in question, since the entire point of "banning religious law" is NOT to have such definitions in the statutory code.

Secondly, courts consider the meaning of terms not defined by statute all of the time. For that purpose, the courts will look to industry practices or ordinary and usual customs by which such terms are defined.

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Response to FarCenter (Reply #20)

Mon May 28, 2012, 05:16 PM

60. The company that I formerly worked sold "Orthodox Union" certified products

Orthodox Union is a Jewish organization that certifies products as Kosher. Products that are certified as Orthodox Union can carry the "OU" trademark label. The food company pays for each and every ingredient or finished product to be certified as Kosher If your company labels a product as "OU" and it has not been certified as Kosher by Orthodox Union, this could be a subject of a civil suit, even if the product is Kosher and other products that your company makes are certified as OU. Usually if this is the case, they give you the benefit of the doubt and allow you to register it without penalty, but they do have the right to sue you or take away your certification for other products. If you are selling something like bacon as labeled OU certified, then your company would get sued for sure and lose.

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Response to Nikia (Reply #60)

Mon May 28, 2012, 05:40 PM

62. Yes, it is another religious racket

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Response to jberryhill (Reply #16)

Mon May 28, 2012, 01:07 PM

21. Funny, that is a civil case

Not a religious one...

just like your extreme example of kosher pork above...fraud is also a civilian case.

For the record...my religious wedding contract has zero standing on any civil court.

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Response to nadinbrzezinski (Reply #21)

Mon May 28, 2012, 01:12 PM

27. So?


Your comment makes about zero sense. The various "no shariah law" proposals would ban any court from applying shariah law to any question. There is no distinction between civil and criminal cases there.

There is both civil and criminal fraud, btw, so why you believe otherwise is something of a mystery.

If I sell ordinary beef as "kosher" in New York, it is not only a criminal act, but the State of New York has a part of its agriculture department in charge of enforcing the New York kosher laws.

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Response to jberryhill (Reply #27)

Mon May 28, 2012, 01:48 PM

49. What part of fraud are you missing

there are days.

Goodbye.

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Response to nadinbrzezinski (Reply #49)

Mon May 28, 2012, 01:52 PM

51. When the determination of "fraud" depends on a determination of religious law

Quite the conversationalist, aren't you.

By the way, I'm supposed to be on your "ignore" list.

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Response to jberryhill (Reply #51)

Mon May 28, 2012, 05:26 PM

61. Usually Kosher products are certified

By Jewish organizations. If you are certified, you can put that on your label. If you are not certified, you cannot put it on your label. If you put that you are certified on your label and you are not certified, you could be sued. There may be criminal penalties as well.
In the case of products that are certified as Kosher, a private organization does define "Kosher". Some other private trade organizations define certain words that can be used on labels or advertising where the same sort of arrangement applies so I don't think that it is necessary that "Kosher" is has religious implications.

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Response to Nikia (Reply #61)

Mon May 28, 2012, 06:08 PM

63. The federal courts of New York didn't think so...

...when they overturned an earlier version of NY's kosher law on First Amendment grounds.

New York re-drafted the law in question, and it was upheld by the Second Circuit earlier this month in Commack Self-Service Kosher Meats, Inc. v. Hooker. Whether it goes up to the Supreme Court from there is an open question.

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Response to jberryhill (Reply #16)

Mon May 28, 2012, 01:10 PM

25. It's still deciding American law

American contract law. The identity of the product is more like a fact question. No different from selling widgets and the other party alleging that it is not a proper widget. Not a widget, but a gadget. The court is applying American contract law to the contract. The Jewish law is just part of the fact determination.

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Response to treestar (Reply #25)

Mon May 28, 2012, 01:15 PM

29. Yes, you win the prize - "religious law" can be a subsidiary fact question


Now, go read some of the "anti shariah law" proposals.

They literally prohibit courts from applying religious law to ANY question. There is no carve-out for answering subsidiary questions of fact in a legal dispute properly before the court.

For example, if the will says, "I leave my house to my son, provided he marries a Catholic by age 25, otherwise the house goes to St. Alphonso's Pancake Breakfast Mission" then the son and St. Alphonso's are going to end up in Probate Court to figure out whether he married a Catholic.

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Response to jberryhill (Reply #29)

Mon May 28, 2012, 01:30 PM

37. It is probably unenforceable as against public policy

The condition on marraige rather than the religous condition would probably make it so.

Were it simply "I leave my house to my son, provided he is still a Catholic by age 25" would probably be enforceable. However, it would be up to the probate court to determine whether the son was indeed Catholic, not to the local Catholic Bishop. Note that as written it does not specify which Catholic church he must still be.

In my opinion, the probate court should accept the son's simple affirmation of being a Catholic or not, without communication with any clergy.

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Response to FarCenter (Reply #37)

Mon May 28, 2012, 01:36 PM

42. Okay, but you get the point


Whether a particular individual may marry outside his faith in this context is not really a matter of "public policy". The "public" has not right to inherit the house.

But taking the example you mention, then you can see where the question of "whether or not someone is Catholic" can be properly before a court.

During Vietnam, it was before a lot of courts, because if you claimed "conscientious objector status" AND you were a member of a particular religion, it mattered a great deal what your religion believed on the subject. Quakers and Amish had no problem. Catholics could not.

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Response to jberryhill (Reply #16)

Mon May 28, 2012, 01:14 PM

28. Sticking strictly to your example, define "kosher" for the purposes of the court.

You are the plaintiff and I am the defendant. You are trying to prove that I failed to execute my portion of the contract, so please define "kosher" and where the USDA sets the guidelines.

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Response to cleanhippie (Reply #28)

Mon May 28, 2012, 01:19 PM

30. The USDA doesn't have to set the guidelines

In contract law, courts have to answer riddles like this all of the time.

What will happen is that the defense will have its expert on the subject to testify about whether the beef was kosher, the plaintiff will have its expert on the subject to testify about whether the beef was kosher, and they will both do so for the purpose of allowing the court to determine what is the usual and customary practice in the relevant trade.

Next on the docket:

Probate Court:

"I leave my house to my son, provided he marries a Catholic before age 25, otherwise I leave my house to St. Alphonso's Pancake Breakfast Mission."

Okay, so, the kid has married a girl at at 24. He turns 25 and wants the house. St. Alphonso's goes to court because they don't believe she is Catholic.

Guess what the Probate Court is going to be figuring out in order to resolve that dispute?

These kinds of questions pop up all of the time, in a multitude of contexts.

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Response to jberryhill (Reply #30)

Mon May 28, 2012, 01:23 PM

33. No, the question will be whether the defendant and the plaintiff are working from the same

definition of "kosher." If I agreed to provide you with "kosher" beef, and I gave you beef that I felt met that standard, then without a precedent of a legal decision of just what "kosher" means, you are going to have a very difficult time proving that I failed to execute my part of the contract.

Lets stick to your original example before moving on, please.

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Response to cleanhippie (Reply #33)

Mon May 28, 2012, 01:38 PM

44. If I take you to court

...and you can't get a credible and accepted Rabbi to back you up.

...and I get a bunch of Rabbis to back me up.

Then you are going to lose. Your personal definition of "kosher" is not going to be understood as a reasonable interpretation of the contract term in the absence of anyone who (a) has an understanding of what "kosher" means in any commercial context, and (b) doesn't agree with you.

Subjective meanings in contract law don't do anything. Contracts are interpreted objectively, unless you are claiming mistake, which is a highly disfavored defense.

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Response to jberryhill (Reply #44)

Mon May 28, 2012, 02:59 PM

57. The burden will be on you to prove that I did not fulfill my part of the contract.

In the end, the case will be decided upon a preponderance of the evidence and existing case law. US case law, not any religious law.

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Response to cleanhippie (Reply #57)

Mon May 28, 2012, 03:09 PM

58. That's an easy burden to carry

If the contract said "kosher", and I present evidence in the form of testimony from a Rabbi that the food was not kosher, then I've discharged my burden.

If you are going to say, "Well my personal definition of kosher is...." then I'm going to win on motions, and there's not even going to be a trial. The reason is that I have presented objective evidence that the food was not kosher, and you have not. You have presented no objective evidence on the point in issue at all.

You had said above that your only defense was going to be something along the lines of your personal subjective belief, and not by reference to any religious authority on the subject. Contracts are not interpreted and applied that way.

Subsidiary fact questions can turn on questions of religious law, and they do so all of the time.

During Vietnam, when men who were Baptists or Catholics claimed "conscientious objector" status to avoid the draft, why do you suppose their claims were denied, while the claims of Quakers were not? It is because courts had come to conclusions on questions of "What do Baptists, Catholics, and Quakers believe about war?" These were court decisions premised entirely on religious beliefs.

If you Google this, you'll probably enjoy it:

Mark Popovsky, The Constitutional Complexity of Kosher Food Laws, 44 Columbia Journal of Law and Social Problems 75 (2010)

The Second Circuit disagrees with Professor Popovsky, though: Commack Self-Service Kosher Meats Inc. v. Hooker 11-3517-cv (2nd Cir., May 2012)

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Response to cleanhippie (Reply #28)

Mon May 28, 2012, 01:27 PM

36. You are also missing the HUGE elephant in the room - binding arbitration

Contract law also permits the parties to specify a form of arbitration.

Courts WILL enforce arbitration results, without "looking under the hood".

So, if our contract specifies that, in the event of a dispute, we appoint the Shaman of Brooklyn to consult with the Spirits of the Dead to decide between us, then that result is enforceable by a court.

The only thing the court is going to ask is, "Mr. Shaman, did you consult with the Spirits of the Dead?"

And if he says "yes", then his decision stands.

This is why the American Bar Association opposes this nonsense.

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Response to jberryhill (Reply #36)

Mon May 28, 2012, 01:31 PM

39. You are now moving the goalposts. Stop adding conditions to try and meet your case.

Lets get back on track and go back to my last unanswered response to you.

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Response to cleanhippie (Reply #39)

Mon May 28, 2012, 01:41 PM

46. I did...


I can only type so fast. But I did answer you above on the "personal definition of kosher" thing. In order to give meaning to a contract term, a court doesn't care about your "personal definition". The contract is to be interpreted objectively. So, absent a relevant statutory definition, then we are going to get some Rabbis to duke it out in court.

But since you are not the only one who latched onto an offhand example of the general concept of "subsidiary fact determination of religious law as a precedent to resolving a contract dispute" (of which it is possible to construct legions), I thought it worth pointing out that court enforcement of arbitration results is a MUCH MUCH bigger problem, and is one of the primary reasons why the ABA looks at this stuff with alarm.

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Response to jberryhill (Reply #36)

Mon May 28, 2012, 08:58 PM

64. A sensible judge would require the spirits of the dead to show up and testify, or throw the case out

 

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Response to WriteWrong (Reply #64)

Mon May 28, 2012, 09:54 PM

65. That's not how cases involving arbitration enforcement work


Your comment reflects a basic misunderstanding of arbitration.

Courts do not look "under the hood" of how an agreed arbitrator decided a case. They will only reverse an arbitration decision in extreme circumstances, such as someone paying the arbitrator under the table or other severe abuse of discretion.

If the parties, when they signed the contract, believed the Shaman to be capable of consulting the spirits of the dead, and they appointed him to do that in order to resolve disputes under the contract, a judge, who is not a Shaman, is not going to require the spirits of the dead to testify in court. The parties said they would abide by the decision of the Shaman, and the Shaman has spoken.

What some people forget is that while you have the right to go to court over contract disputes, you also have the right, in a contract, to agree not to go to court over contract disputes.

A court is bound to respect the right of the parties not to use a court to decide the dispute.

When someone takes an arbitration decision to court for enforcement it is to engage the apparatus of the state to do things like attach wages or seize assets pursuant to the arbitration decision. It is not to get a "do over" on the underlying dispute that was taken to arbitration.

No "sensible judge" would do any such thing as you suggest under the Federal Arbitration Act or corresponding state arbitration laws.

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 01:11 PM

26. actually, I don't believe any state has banned Sharia Law

Well, OK voters did, but that law was struck down. The only other state to do something this stupid was Kansas- Brownback just signed it, but it doesn't actually mention Sharia Law. Other states have considered it, but none have actually done it.

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Response to cali (Reply #26)

Mon May 28, 2012, 01:23 PM

32. I stand corrected, thank you.

I've read about bills, but don't remember if they passed.

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Response to no_hypocrisy (Reply #32)

Mon May 28, 2012, 01:33 PM

41. your point is entirely valid

they're trying.

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 01:23 PM

34. Or Fundamentalist Christian Law

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 01:41 PM

45. Sure right after

They ban those polygamy compounds of RLDS all over the southwest. Those colonies of Menonites could harbor potential abuse as well. And those homeschooling ought to have regular inspections to make sure the kids keep up in school and are not exposed to really crazy Christian crap. Carry on.

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 01:47 PM

48. And yet these idiots see nothing ironic about trying to impose

their own extremist religious views on everybody else via trying to ban abortion and birth control. But I guess when the extremist looks like you, it's okay.

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Response to no_hypocrisy (Original post)

Mon May 28, 2012, 02:13 PM

56. All religious extremist law should be banned.

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