Tulsa, not Tehran
"(Proposition 755) forbids courts from considering or using international law. It forbids courts from considering or using Sharia law."
Oklahoma Referendum, passed November 2, 2010
The constitutionality of this amendment to the Constitution of Oklahoma is being contested by Muncer Awad, a Muslim resident of the state. US District Judge Vicki Miles-LaGrange issued a temporary restraining order that prevents the amendment from taking effect until after a hearing in her court on November 22.
1. What would be the effect of this amendment, if upheld?
Decisions of foreign courts are never binding on American courts. However, sometime American judges will cite foreign decisions or foreign laws to shed light upon some contested question. Since American common law stems from Britain, British laws and decisions are cited more often than any other. (1) Since "international law" generally applies to the acts of nations, rather than individuals or corporations, it would be very rare for a state court to apply international law, even without Proposition 775. Thus, the first sentence of the Proposition would have virtually no effect on jurisprudence in Oklahoma.
It is possible that a dispute between two or more Muslims in Oklahoma could be settled by binding arbitration, with agreement by all parties that the arbitrator decide according to Sharia (Islamic) law. If so, an Oklahoma judge may have to enforce a ruling by such an arbitrator. The amendment would not bar this from happening, since the judge would not be considering the ruling in the light of Sharia, but merely enforcing an agreement for binding arbitration. The same would be true of a dispute between Jews in the state being arbitrated by a "Beth Din."
The amendment would foreclose the possibility of Oklahoma adopting legislation that would criminalize the sale of food forbidden by Muslim law that was advertised as compliant under such law (bilal), since a judge would have to consider Sharia in deciding whether a particular piece of meat was "kosher for Muslims" or not (2). Since Muslims comprise less than one percent of the population of Oklahoma, laws of this type are not likely to pass anyway.
2.Does Proposition 755 violate the US Bill of Rights?
Plaintiff Awad claims that it violates the Establishment Clause of the First Amendment, but I say he is wrong. Actually, the amendment forbids the establishment of Islam in Oklahoma, which is forbidden by the First Amendment to the US Constitution anyway. Prop 755 does nothing to bar the "free exercise" of religious rights by Muslims (or anyone else).
However, it just might run afoul of the "Equal Protection" clause of the Fourteenth Amendment, since it specifically bars courts from considering Sharia, while (by implication) permitting courts to consider Biblical, Talmudic or other religious-based canons of law. The authors of the amendment could have easily avoided the Equal Protection problem by barring courts from "considering or using any foreign or religious law." But they chose to single-out Sharia.
3. Then why amend the Constitution of Oklahoma in this way?
My guess is that the authors of Proposition 755 did not care if state courts applied principles of Christian or Jewish law, but wanted to show their special hostility to Islam. As noted in our posting titled "Vilifying Islam", there is a lot not to like about Islam. Apparently the 70% of Oklahoma voters who approved 755 November 2 agreed. This can be fairly termed "Islam-bashing."
Although I would not want to live under Sharia myself, I consider the prospect of American courts imposing it on us so remote as to be absurd. How would we feel if the Wisconsin legislature passed an amendment to forbid our state courts from "considering or using the Talmud" in rendering decisions? Would we be relieved that our judges were not going to base their rulings on Nzikin(3), or would we consider singling-out of the Talmud to be anti-Semitic? Ask ADL!(4)
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(1) A decision on capital punishment of minors referred to the practices of foreign courts that considered the execution of minors a violation of human rights.
(2) The State of New York prohibits sale of treif as kosher.
(3) The book of the Talmud that deals with damages.
(4) Anti-Defamation League of Bnai Brith, a national organization devoted to exposing and fighting anti-Semitism.
Oklahoma Referendum, passed November 2, 2010
The constitutionality of this amendment to the Constitution of Oklahoma is being contested by Muncer Awad, a Muslim resident of the state. US District Judge Vicki Miles-LaGrange issued a temporary restraining order that prevents the amendment from taking effect until after a hearing in her court on November 22.
1. What would be the effect of this amendment, if upheld?
Decisions of foreign courts are never binding on American courts. However, sometime American judges will cite foreign decisions or foreign laws to shed light upon some contested question. Since American common law stems from Britain, British laws and decisions are cited more often than any other. (1) Since "international law" generally applies to the acts of nations, rather than individuals or corporations, it would be very rare for a state court to apply international law, even without Proposition 775. Thus, the first sentence of the Proposition would have virtually no effect on jurisprudence in Oklahoma.
It is possible that a dispute between two or more Muslims in Oklahoma could be settled by binding arbitration, with agreement by all parties that the arbitrator decide according to Sharia (Islamic) law. If so, an Oklahoma judge may have to enforce a ruling by such an arbitrator. The amendment would not bar this from happening, since the judge would not be considering the ruling in the light of Sharia, but merely enforcing an agreement for binding arbitration. The same would be true of a dispute between Jews in the state being arbitrated by a "Beth Din."
The amendment would foreclose the possibility of Oklahoma adopting legislation that would criminalize the sale of food forbidden by Muslim law that was advertised as compliant under such law (bilal), since a judge would have to consider Sharia in deciding whether a particular piece of meat was "kosher for Muslims" or not (2). Since Muslims comprise less than one percent of the population of Oklahoma, laws of this type are not likely to pass anyway.
2.Does Proposition 755 violate the US Bill of Rights?
Plaintiff Awad claims that it violates the Establishment Clause of the First Amendment, but I say he is wrong. Actually, the amendment forbids the establishment of Islam in Oklahoma, which is forbidden by the First Amendment to the US Constitution anyway. Prop 755 does nothing to bar the "free exercise" of religious rights by Muslims (or anyone else).
However, it just might run afoul of the "Equal Protection" clause of the Fourteenth Amendment, since it specifically bars courts from considering Sharia, while (by implication) permitting courts to consider Biblical, Talmudic or other religious-based canons of law. The authors of the amendment could have easily avoided the Equal Protection problem by barring courts from "considering or using any foreign or religious law." But they chose to single-out Sharia.
3. Then why amend the Constitution of Oklahoma in this way?
My guess is that the authors of Proposition 755 did not care if state courts applied principles of Christian or Jewish law, but wanted to show their special hostility to Islam. As noted in our posting titled "Vilifying Islam", there is a lot not to like about Islam. Apparently the 70% of Oklahoma voters who approved 755 November 2 agreed. This can be fairly termed "Islam-bashing."
Although I would not want to live under Sharia myself, I consider the prospect of American courts imposing it on us so remote as to be absurd. How would we feel if the Wisconsin legislature passed an amendment to forbid our state courts from "considering or using the Talmud" in rendering decisions? Would we be relieved that our judges were not going to base their rulings on Nzikin(3), or would we consider singling-out of the Talmud to be anti-Semitic? Ask ADL!(4)
------------------------------------------------------------------------
(1) A decision on capital punishment of minors referred to the practices of foreign courts that considered the execution of minors a violation of human rights.
(2) The State of New York prohibits sale of treif as kosher.
(3) The book of the Talmud that deals with damages.
(4) Anti-Defamation League of Bnai Brith, a national organization devoted to exposing and fighting anti-Semitism.
posted by Gerald S Glazer at 11:02 AM
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