One of the overlooked votes Nov. 2 was in O klahoma, where voters passed a ballot initiative that forbids the state's judges "from considering Islamic or international law when making a ruling." It passed 70-30 and it was not a good thing. Politico reported,
The proposition’s sponsor, Republican Rex Duncan, told reporters Tuesday that the proposition is a "preemptive strike" against judges who he worries could be "legislating from the bench or using international law or Sharia law."The measure's opponents say that the Constitutional issues of the measure will cause federal courts to strike it down, and leaders of the few Muslims in Oklahoma have already said they will challenge the measure.
Reuters blog reports that the measure was this:
"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."The amendment's challenge in federal court will succeed. Furthermore, I think the challenge should succeed - not because I support sharia law (surely my record is clear on that), but because the amendment is so poorly constructed. Oklahoma lawyer Rick Tepker, who has tried cases before the U.S. Supreme Court, explains some of the problems.
"Many of us who understand the law are scratching our heads this morning, laughing so we don't cry," he said. "I would like to see Oklahoma politicians explain if this means that the courts can no longer consider the Ten Commandments. Isn't that a precept of another culture and another nation? The result of this is that judges aren't going to know when and how they can look at sources of American law that were international law in origin."The issue really before us is not whether our courts should consider sharia law, but in what way should they consider it. It is whether they may consider sharia's precepts to override civil law or the Constitution. After all, courts in America are already hearing cases in which they consider, for example, whether a contract made under sharia's precepts is enforceable by civil courts.
UCLA Constitutional Law Prof. Eugene Volokh explained a case decided last summer in which a Muslim ex-husband sued his ex-wife to compel her to return "a $12,500 'mahr' payment that was made at the time of the marriage." The man and woman had agreed in advance that the marriage would be constituted “under the law of Islam," of which the $12,500 the wife received was a part. So the civil court determined that the terms of the Islamic marriage did in fact constitute an enforceable contract under civil law, not just sharia law. It ordered the wife to return the money.
This case was really a case of honoring a pre-nup made under Islamic terms rather than, say, Hollywood terms. To render a ruling, the court had to consider Islamic law as the Oklahoma measure defines considering.
Those who oppose the "creeping sharia" of America, as I do, should encourage this kind of jurisprudence, not oppose it. For note what happened here. Instead of sharia being superior to US law, it was made subordinate and subject to civil, secular law. With every case so heard, the precedent is set that US law is precedent over sharia law. And that is precisely what we should want!
Although I agree with the Oklahoma measure's intention, this is a lousy way to make the point. And the good intention is not a reason to support it.
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