Last week, the State of Oklahoma held a referendum on the use of Sharia Law by the Oklahoma state courts. The referendum garnered 70.08% of the vote, with 695,650 people voting for and 296,944 voting against the proposal. The ballot to State Question No. 755 read as follows:
STATE QUESTION NO. 755 LEGISLATIVE REFERENDUM NO. 355
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.
SHALL THE PROPOSAL BE APPROVED?
FOR THE PROPOSAL — YES
AGAINST THE PROPOSAL — NO
Of course, being a primary law aficionado, I had to look-up the actual text of the proposed law.
B. Subsection C of this section shall be known as the “Save Our State Amendment”.
C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
So, two days after the voters approved the amendment, Muneer Awad, the Executive Director of the Council on American Islamic Relations-Oklahoma, sued the members of the Oklahoma State Board of Elections, seeking “a temporary restraining order and preliminary injuction enjoining Defendants from certifying the election results for State Question 755.”
Save Our State Amendment
The Save Our State amendment presents two problems. First, let’s consider the scope of the prohibition: Oklahoma state courts may not consider Sharia law. In that Oklahoma courts will have to adjudicate family law by adhering to Oklahoma law, the law just reflects the current state of affairs and breaks no new ground. After all, secular courts are ill-equipped to decide matters of Sharia law or canon law. However, by no means will the Save Our State amendment stop Sharia law from encroaching onto Oklahoma’s borders.
Just take a quick trip due south to Texas. In Jabri v. Qaddura, 108 S.W. 3d 404 (Tex. App., 2003), the Second Court of Appeals of Texas enforced an arbitration agreement in a family law dispute. Specifically, one of the parties was seeking to enforce an agreement to arbitrate a divorce and child custody matter according to Islamic rules of law by the Texas Islamic Court. Now, if the same fact pattern arose in Oklahoma, an Oklahoma court may still arrive at the same result even with the passing of the Save Our State amendment because the court would be applying the state’s family and arbitration law, not Sharia law, in deciding this issue. To the extent that Oklahoma permits certain family law matters to be arbitrated, it should not matter whether the arbitration was secular or religious in nature.
The second problem with the Save Our State amendment is the prohibition on considering international law. Now, if an Oklahoma company and a French company entered into a contract that contained a provision that the agreement shall be interpreted, construed and governed under and by the laws of France, the Save Our State amendment may prohibit the Oklahoma court from considering French law, effectively striking the choice-of-law provision from the contract. The argument would be that the Save Our State amendment only permits state courts to adhere to certain federal and state laws, which do not include French laws. Additionally, the specific ban on looking to the “legal precepts of other nations” as well as “international law” precludes the court from deciding a case based on foreign laws despite the consent of the disputing parties.
So, while the Save Our State amendment may have no real effect on curbing Sharia law, it may have unsettled the status of commercial contracts involving entities that do business with Oklahoma companies. An impotent law that needlessly antagonizes Muslims while harming your own commercial interests is a lose-lose proposition.
Temporary Restraining Order
Yesterday, Judge Vicki Miles-LaGrange granted Mr. Awad’s request for a temporary restraining order and enjoined the defendants from certifying the election results for State Question 755. The judge found that the plaintiff had shown a substantial likelihood of success on the merits of his claim asserting a violation of the Establishment Clause” and the Free Exercise Clause. The temporary restraining order remains in effect until the conclusion of the hearing on the the plaintiff’s request for a preliminary injunction, which is scheduled for November 22, 2010.