Tuesday, November 9, 2010

Why Both Sides of the Debate Over OK State Question 755 on Sharia Law are Wrong

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

The above is the text of Oklahoma's State Question 755 (thank you, Ballotpedia). It appeared on the ballot with this summary: "A Joint Resolution direction the Secretary of State to refer to the people for their approval or rejection a proposed amendment to Section 1 of Article VII of the Constitution of the State of Oklahoma; creating the Save Our State Amendment; requiring the courts of this state to uphold and adhere to the law as provided in federal and state constitutions, established common law, laws, rules and regulations; prohibiting consideration of certain laws; providing ballot title; and directing filing." This measure passed, and now Muslim groups are suing over it and also (justafiably, I think) getting generally upset.

Let's start with the measure's passage. I think this is a bad question for three reasons. It boils down to there being a weak Constitutional case against it, a stonger Constitutional case against it, and then a basic Be A Human case against it. The weak Constitutional case is via the First Amendment, in which we say that we will "make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The only reason I feel I must call this a weak case against the question is because there is some room in the language for a defense. First of all, the clause begins with saying that Congress shall make no law establishing or prohibiting the exercise of religion, and this isn't a Congressional act. Secondly, I think you could probably raise a reasonable argument that sharia law is in fact exercise of religion. In both cases, I think you'd be relying on an overly literal interpretation of the Amendment. The Constitution clearly intends that people should be able to worship freely, not that a religion-based legal system should be allowed to preempt the US legal system. More importantly, if we accept that the writers of the Constitution wanted free practice of religion, we must assume that the inverse of their positive phrasing would apply too, and that no religion should be singled out for a ban. Just as no one religion should be established as the religion of the country, none should be banned.

It's a little irritating to have to admit a weaker-than-you'd-like case via the First Amendment, but luckily we have Article Six to come in with a much stronger case against the Question. Article Six of the Constitution reads: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." This directly addresses the international law component of Question 755. Regardless of how Oklahoma may feel about treaties agreed to by the Federal government, the Constitution says right out front that they supersede the laws of any state. This renders Question 755 unconstitutional, full-stop. [NB: to be quite honest, given the pairing with sharia, I am assuming that the authors of this question are less concerned about compliance with treaties and more with the encroachment of other legal systems on the US system. I freely admit that I read a fair amount of xenophobia into this question, but I'm trying to leave that out of most of this.]

Unfortunately, none of this amounts to a win for opponents of the question, who seem to have taken up the First Amendment argument. To begin: sharia law is not US law. You do not have a right to have your religious legal system supersede the US legal system, period. A judge or jury considering a case before them should be considering US law and US law alone. That feels a little silly to say, because...that's how the law works. There have been some pushes by various Muslim communities to have sharia govern their communities, but they have been rightfully smacked down in this country because this is America, and it comes with a legal system. If you want to layer sharia over the top of the legal system where you live, you are free to do that, but you are going to face the consequences for actions that violate US law. That's how living in a country works. If I lived in Saudi Arabia, I would expect to be held accountable to that country's law, even if I didn't like it and didn't believe in it.

This brings me to the Be A Human argument against Question 755. Sharia shouldn't be integrated into US law. It shouldn't have legal standing in US courts. It shouldn't take the place of US law. But State Question 755 is a response to a statement no one is seriously making. I have not heard of a single US legal authority - authority, i.e. not a blogger, not a columnist, not a commentator, not an interest group, but someone who has actual sway over the way our legal system works - seriously advocate for sharia law's incorporation. In the absence of such advocacy, State Question 755 is transformed into little more than a spiteful slap directed at Muslims. There are a lot of things I don't like about sharia law. I would never want to live under it and to be quite frank, I would be disgusted if our legislators were so weak-minded as to allow it to supplant US law or even become an integral part of it, but I don't think that America is about actively being spiteful towards people who are "not like us", and I think this because...who ISN'T like us? Which of us has a claim to majority? Which of us has family who have been here since the beginning of history? Very, very few. I know that this is a scary time. I'm scared too. But I don't think wasting our time on spiteful questions like this one or vilifying Muslims is going to help.


  1. Fortunately the 1A case isn't weak, as courts have long held that the 14th applies it to state governments as well. (See "Incorporation," good run-down here) I heard on the radio yesterday that one of the major objections to the Sharia clause is not related to the truly dastardly parts but to things like the execution of wills, where other religious law systems often enter into play. Good objection if true.

    As for the other part of it, I know what they were trying to do by barring "international law," but they completely missed. I have a feeling that this measure stemmed from federal judges notoriously bringing foreign laws and doctrines into their opinions and that this was meant to block that practice. You're absolutely right, though, that as written it completely misses the mark because it only seems to target duly ratified treaties. Oops.

  2. I was actually going to write a bit about the bizarro wording of questions that popped up this cycle (and I still might), but decided in the end to keep it centered on this question for this post. There were a LOT of questions this cycle that either presumed a MASSIVE amount of technical legal knowledge or else did something like this question where you can see where they might be going but they completely missed.

    I am kind of torn on the referencing of foreign laws and doctrines into opinions, because of course there are other laws in other nations and such that have good stuff in them, but, you know...US court, so irrelevant. I guess I want judges and legislators to know about the good bits of foreign laws and doctrines, but not let them sway their opinions, but I don't know how you evidence that and stay the course. Conversation, I guess. Maybe it just stays invisible.

    OR! OR you could have discussion day or something and air it on C-Span! Congresspeople and judges talking about law!

    That would only be fun for me, wouldn't it.