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)

------------------------------------------------------------------------

(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.

Palestine Pales

"The Arabs never miss an opportunity to miss an opportunity."
Abba Eban

"We hold him (Netanyahu) fully responsible for the collapse of these negotiations."
Saeb Erekat of the Palestine Authority (PA), Nov. 8, 2010 (1)

The prospects for setting up a Palestinian state were never better than in the early months of 2009. The new American President Barack Hussein Obama, the first such ever raised as a Muslim (2), had been elected with 53% of the popular vote and had both houses of Congress controlled by his party. He went to Cairo and promised the creation of a state of Palestine, and was determined to put "some daylight" between the US and Israel to achieve it. Obama even obtained a ten-month freeze on settlement construction from the Netanyahu government to create the atmosphere for successful negotiations.

President Abbas of the PA should have exclaimed, " Yes! Let's begin serious talks at once and keep negotiating till we get our state!" Instead , his attitude seemed to be "Hang tough and we will get everything we want!"

At first he was not ready for any talks with the Israelis, then only agreed to "proximity" (indirect) talks with them, then finally met face-to-face . When the ten month freeze expired, he asked for its extension. Now that construction is resuming, the PA is threatening to walk away from the talks altogether. (1) Like a winning football team that "eats up the clock" in the final minutes of the game, the Palestinians have dithered and stalled for the first two years of the Obama presidency. But all they have to show for it is a well-chewed clock.

Meanwhile, changes in the American political dynamic have undermined President Obama's ability to pressure Israel into making the kind of concessions necessary to garner Arab agreement (if that were possible at all):

1. The 2010 Congressional elections
The Democrats lost the House, and have about a 6-vote majority in the Senate. According to AIPAC, the present Congress is pro-Israel, and the next one will be even more so. But more important is the fact that a Democratic-led House would never repudiate the efforts of a Democratic president, but a Republican-led one just might! Obama will have to be very friendly to Israel in 2011 and 2012 to avoid such a humiliation.

2. It's almost 2012.
So far the 2012 Democratic presidential nomination is Obama's for the asking. But if he does something outrageous enough, such as souring our relationship with Israel, an ambitious Democrat could challenge him for the nomination. The first primaries and caucuses are just over a year away, and candidates will be gearing-up their campaigns by mid-2011. Although a challenging an incumbent president for the nomination of his party is usually unsuccessful, a serious challenge could split the party so deeply that the nominee loses the general election. (3)
All the serious potential Republican candidates (Gingrich, Palin, Romney, etc.) are pro-Israel. So even if Obama is the unanimous choice for the Democratic nomination, anything he does that can be characterized as even remotely anti-Israel can and will be used against him by the Republicans in the 2012 campaign.
However, if Barack Obama declines to seek re-election, he can mess with Israel all he wants during his remaining months in office, and Congress may not be able to stop him. But since he will then be a "lame duck", no one will listen much.


So the Palestinians blew their big chance. But in early 2013 the President will revive the "peace-process" and the game will be on again.

-----------------------------------------------------------------------

(1) Associated Press, quoted in the Milwaukee Journal Sentinel, page 4A.

(2) His Indonesian stepfather Loto Soetero was a Muslim, and presumably raised Barack as one. He converted to Christianity in Chicago around 1992.

(3) In 1952 and 1968 the incumbent Democratic president lost the New Hampshire primary and withdrew from the race. Both times the Republicans took the presidency.
In 1884 the Republican Party denied the incumbent (Chester Alan Arthur) the nomination, and the Democrats took the presidency for the first time since 1856.