American Laws for American Courts

On Monday, September 12, 2011, the 10th Circuit Court held a hearing on the constitutionality challenge to the Oklahoma state constitutional amendment, passed overwhelmingly in November of 2010, to prevent courts in Oklahoma from using international law or shariah law in their decisions. Dubbed the "Save Our State" amendment and referred to officially as State Question 755 (SQ 755), the initiative stated:

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.

This well-meaning amendment seemed reasonable at first glance and was hailed in conservative circles as a step in the right direction to preserve American sovereignty and prevent the incorporation of shariah law into American courts and institutions. The bill's supporters wanted, rightly, to prevent the European mistake of allowing parallel shariah court systems, which have denied legal rights to Muslim citizens and prevented full integration into Western society. And 70% of the Oklahoma electorate supported the bill's principles of preventing "foreign laws in general, and Islamic Sharia law in particular, from overriding state or U.S. laws."

But first glances can be deceiving. In fact, the reality is very different.

Unfortunately, SQ 755 has had the opposite of its intended effect. It has proven to be a boon to its opponents, and a distraction from the more carefully drafted bills designed to prevent both the entry of unconstitutional foreign laws such as shariah in American jurisprudence and the use of transnationalism by activist judges.

SQ 755 contains several flaws, some legal and some practical. The legal flaws have already been exposed in the federal courts, which have effectively quarantined the amendment from being implemented. Here is a summary of the flaws in SQ 755, Oklahoma's Save Our State amendment:

SQ 755 is not facially neutral, because it specifies shariah law. SQ 755 contains what appears to be a blanket ban on the use of international law or the laws of foreign nations. While this may seem like a good idea at first glance, from a practical standpoint it may interfere unnecessarily in the right to contract and could serve as an impediment to international commerce. In essence, if someone in Oklahoma, or a business or corporation in Oklahoma, wants to sign a contract with provisions of foreign or international law, they can do so. This is not an uncommon practice in business in these times, and throwing such agreements out of Oklahoma courts simply based on the fact that they contain elements of foreign law could in fact place Oklahoma corporations at a disadvantage in having to have all disputes adjudicated away from home. SQ 755 is too vague. It does not give the courts specific enough instructions with regard to such complex legal issues as comity and choice of forum. This could create loopholes for activist judges. Practically speaking, SQ 755 is defective if its aim is to prevent the enforcement of shariah laws in America. The bill bans the use of shariah in decisions without defining what shariah is....

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