A federal appeals court's ruling against a proposed constitutional amendment to ban Oklahoma courts from using Islamic Sharia law represents more than a setback to the measure's proponents.
Experts say that the decision also reveals how such laws fall somewhere between impractical and unconstitutional. Oklahoma was not alone in pushing for a Sharia ban -- three other states have passed laws that would prohibit Sharia and more than two dozen have considered such measures, according to a report by Congressional Quarterly Global Researcher -- but Oklahoma's was the only one to explicitly mention Sharia, the compendium of laws and prescriptions emanating from interpretations of the Koran.
Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma, sued to block implementation of the amendment after it was overwhelmingly approved in November 2010 by Oklahoma's voters. A three-member panel of the Denver-based U.S. Tenth Circuit Court of Appeals on Tuesday upheld a district judge's decision to block the law from implementation, agreeing with Awad's contention that the measure violated the Establishment Clause by discriminating against Islam and exposing Muslims in Oklahoma to disfavored treatment.
Tenth Circuit: No Instances of Sharia Law Overriding American Law
But beyond the question of whether the law is discriminatory, legal scholars questioned what the proposed amendment sought to accomplish. The Tenth Circuit judges noted in their decision that the amendment's defenders could not name a single instance in which Oklahoma courts allowed Sharia law to preempt or override American laws.
My sense of this amendment was it wasn't really about specific legal cases but more about making a political statement about what counts as law and what doesn't count as law, a John Parry, professor Lewis & Clark Law School who studied the amendment's potential impact. The supporters kind of spoke vaguely about the threat of Islamic law, but it seemed like this was more inoculation against a virus rather than trying to treat something that was currently a disease.
Many legal experts are incredulous at the idea that Sharia law could come to supplant American law. Raj Bhala, a professor at the University of Kansas Law School and an expert in Sharia and international law, called the fact that judges must cite recognized sources of U.S. law in rendering their decisions law school 101 material. Proponents of measures to ban Sharia cite family law as a potential gray area, frequently pointing to a case in which a New Jersey judge cited religion in refusing to grant a woman a restraining order against her abusive husband. But that decision was quickly reversed.
The language of the Oklahoma amendment encompasses anything that falls outside American jurisprudence, stating that courts shall not look to the legal precepts of other nations or cultures, and going on to specifically mention international law or Sharia law. If that were to be enforced, it could have repercussions that range from global commerce to carrying out someone's wishes after they die.
The latter factored into the Oklahoma case. Awad argued that the law would prevent a court from probating his last will and testament, which was written to be consistent with Sharia doctrine governing inheritance. That would effectively prevent Muslims from living in accordance with their faith, a point underscored in a brief filed by a coalition of Christian and Jewish groups in support of Awad.
The impact of this would obviously register for people who want their wills to be exercised consistent with the tenets of their faith, said Chandra Bhatnagar, a senior attorney at the American Civil Liberties Union.
The amendment's authors had sought to rebut charges of bias by coupling Sharia and international law. But attempting to ban judges from considering international law would spawn a host of legal issues that underscore the fallacy of attempting to shield American courts from other legal systems, Parry said. A ruling made in England could be rejected by Oklahoma courts; a business deal made in Canada or a contract won in Egypt could be invalid.
It's just one headache after another for judges and lawyers without any obvious benefit for the people of Oklahoma, Parry said. It's almost like a do not do business in this state amendment if you're a foreign company.
Under Amendment, International Treatries, Agreements Would Become Contentious
International treaties and agreements would also become contentious. A couple that travels abroad to adopt a child, for example, does so under the auspices of the Hague Convention on Intercountry Adoption. A couple that traveled to Jamaica or France to be married would face issues having their marriage recognized in Oklahoma.
It would cause chaos in Oklahoma courts, Bhatnagar said.
Bhala said that the authors of the amendment may have been motivated by a fear of judicial activism, not in the traditional sense of liberal judges legislating from the bench but in the sense of judges using foreign or international law as supplementary guidance in their reasoning. Judges in such cases would still be basing their decisions in the U.S. legal system.
If we were talking about the French or German civil code this wouldn't be an issue, Bhala said. But given the post 9/11 context, which has catalyzed Islamophobia, there's a particular fear of going down the slippery slope when it comes to the Sharia.