Oklahoma's Anti-Sharia Amendment not OK
In November 2010, more than 70 percent of voters in Oklahoma approved the “Save Our State” Amendment to the Oklahoma Constitution. That amendment “saved the state” by prohibiting Oklahoma state court judges from considering “the legal precepts of other nations or cultures . . . [s]pecifically, . . . international law or Sharia Law.” The ballot defined Sharia for voters as “Islamic law . . . based on two principal sources, the Koran and the teaching of Mohammed.”
The amendment was immediately challenged in federal court on First Amendment grounds. The plaintiff in the case was Muneer Awad, an American citizen, a Muslim, and the executive director of the Oklahoma Chapter of the Council on American-Islamic Relations. The U.S. District Court for the Western District of Oklahoma issued a preliminary injunction that blocked the Oklahoma State Board of Elections from certifying the results of the vote on the amendment. This decision prevented the amendment from going into effect.
Last week, the U.S. Court of Appeals for the Tenth Circuit upheld that injunction, agreeing with the lower court that Awad is likely to win his First Amendment challenge to the anti-Sharia amendment. The case now goes back to the lower court for further proceedings.
As explained by Professor Martha F. Davis and Emily Abraham in last fall’s human rights issue of Clearinghouse Review: Journal of Poverty Law and Policy, the Oklahoma amendment was merely the most extreme example of a recent wave of state initiatives against Sharia and transnational law (defined as foreign or international law). In the past two years, more than twenty states considered such legislation. At least six of those state proposals specifically targeted Sharia.
Davis and Abraham’s article, “Oklahoma’s Anti-Sharia and Other Antitransnational Proposals: A Backgrounder for Domestic Human Rights Advocates,” puts these state legislative efforts in a larger perspective. They explain that transnational law has a long, nonthreatening history in state courts. For example, state courts sometimes review claims implicating an international law such as the Hague Convention on the Civil Aspects of International Child Abduction. Occasionally a state case will involve foreign standing and treaty compliance. More generally, state courts may look to transnational law for insight or ideas. Oklahoma’s constitutional amendment would have forbidden all of these legitimate considerations of transnational law.
But what about Sharia? Sharia is broad and applies to topics as diverse as business, contracts, and social issues. Davis and Abraham explain that a written agreement could declare Sharia to be the law of the contract, causing a judge to need to consider Sharia to resolve any legal questions about its meaning. Likewise, child custody or divorce agreements may implicate Sharia. Awad himself asserted that the Oklahoma amendment would prevent a court from probating his will because it contains references to Sharia. Rather than posing a threat to Oklahoma law, these potential uses of Sharia fall within the long tradition of state courts' legitimately considering transnational law in the application of their own state laws.
The Clearinghouse Review special issue on human rights explored how legal advocates may incorporate international human rights ideas into their domestic poverty law practice. Notions such as a human right to housing, health care, or food offer a useful framework for public interest lawyers and can bolster their advocacy. In some states, antitransnational law efforts may have a chilling effect on judges’ receptiveness to this framework, but if the Tenth Circuit’s opinion is any guide, most judges will understand that international and comparative law play an appropriate and important role in our domestic courts.
