On 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. Judges in the U.S., Oklahoma being no exception, are not generally educated or informed about shariah. They cannot be expected to recognize shariah. If a question arises in a case as to whether some aspect of a conflict comprises shariah or not, a judge will be forced to consult an outside expert or source to make a determination. In almost every circumstance, that outside expert or source will end up being a shariah scholar or the work of a shariah scholar. So, ironically, the very law that is designed to prevent shariah from working its way into our legal system will have invited shariah experts in to make rulings.
Unfortunately, SQ 755 has now given ammunition to proponents of shariah and transnationalism, who point to 755 as "proof" that any law designed to prevent the incursion of foreign laws and foreign legal doctrines into state courts in the United States is unconstitutional, or will be subject to expensive legal challenges from Islamist groups, such as the Muslim Brotherhood's Council on American Islamic Relations (CAIR) or the judicial activist/transnationalist ACLU.
The reality is that there is an effective alternative to SQ 755 legislation and its various copycats around the country. That legislation is called American Laws for American Courts (ALAC) and it can be accessed here.
ALAC has already been passed into law in 3 states -- Tennessee (April 2010), Louisiana (June 2010), and Arizona (May 2011) -- and has not incurred any legal challenges, because there is simply no legal basis on which to challenge ALAC. This is significant because SQ 755 was challenged in federal court within days of passage.
ALAC remedies the flaws in SQ 755, and in many ways takes a diametrically opposite approach to SQ 755:
•ALAC is facially neutral. In an honest debate, it cannot be accused of discriminating against any religion or protected class.
•ALAC is based on a completely different legal premise from SQ 755's. Rather than seeking a ban on foreign or international law, ALAC seeks to preserve the constitutional rights and state public policy protections of American citizens and legal residents, in cases involving foreign laws in the particular dispute being adjudicated. If a case arises in which a foreign law or foreign legal doctrine is involved in a dispute in a state court, ALAC prevents the use of that foreign law or foreign legal doctrine if any of the parties' constitutional rights or state public policy would be violated in the process. This is very different from a blanket ban on foreign laws. ALAC also contains a specific provision for corporations and businesses so as not to interfere with commerce; it exempts Native American laws; it specifically says that the law cannot detract from the right to free exercise of religion, which would include religious courts like Jewish Bet Din or Catholic ecclesiastical courts; and it states that the law would not interfere with compliance with international treaties the U.S. has signed.
•ALAC is not vague. It provides specific instructions for judges on complex legal issues involving comity and choice of forum, thus closing potential loopholes for activist judges.
•Because of the careful planning and thought behind ALAC's wording, in contrast to SQ 755, from a practical standpoint, it is effective in preventing the enforcement of any foreign law -- including in many cases, shariah law -- that would violate U.S. and state constitutional liberties or state public policy.
* And the need for an effective law preserving constitutional rights against the enforcement of unconstitutional foreign law is both real and urgent: an independent study found fifty cases in 23 states where shariah law had been introduced into state court cases, including many appellate and trial court cases where the judges ruled for shariah law over U.S. law. Most victims of foreign laws in these cases had come to America for freedom and individual liberty -- including American Muslims seeking to escape shariah laws.
It is important that activists, legislators, and the media recognize the flaws in Oklahoma's SQ 755, so that they do not use it as a model.
Fortunately, most legislators have already made the right choice. The American Laws for American Courts Act -- already passed in three states and never challenged in court -- is progressing through legislatures in several states with two-year or year-round sessions, and is either scheduled to be introduced or under consideration in over 25 additional states for the coming legislative session.
On August 31, 2011, the initiative received an important endorsement when the Michigan version of the American Laws for American Courts bill was endorsed by a prominent group of American Muslims opposed to the enforcement of shariah law in America: the American Islamic Leadership Coalition. The model American Laws for American Courts Act on which the Michigan bill is based has already been endorsed by a former CIA director; a former director of the Defense Intelligence Agency; a former inspector general for the Defense Department; and dozens of lawyers, law professors, rabbis, clergy, and community leaders across the country as "the 21st Century civil rights initiative to ensure constitutional liberties for all Americans."
Christopher Holton is Vice President for Administration, Marketing & Development at the Center for Security Policy.