by By now, I suspect many of you have seen the text of the new Oklahoma amendment to its state constitution – an amendment that received 70% of the vote in a recent referendum – which states, in part, that “The Courts . . . when exercising their judicial authority . . . shall not consider international or Sharia Law” (click here for the full text). My own view is that there are a variety of problems with the amendment, some of which I outlined in an op-ed in today’s LA Times. First, there are quite a number of constitutional issues with the amendment – both free exercise and establishment issues - and unsurprisingly there’s already a lawsuit challenging the amendment on those grounds (for background, here’s a post of mine on these developments). Indeed, it’s likely that the willingness of other states to go forward with similar legislation – both Arizona and South Carolina have introduced similar bills – will greatly depend on the outcome of this constitutional challenge to Oklahoma’s amendment.
My other concern, however, is also on the merits of the amendment. As statements by the sponsors of the bill make clear, the amendment is in large part targeted at Islamic arbitration. At its best, the bill would appear to provide protections that already exist based on arbitration statutes, unconscionability and the public policy exception. Furthermore, drafting such a broad bill to ban all forms of Islamic arbitration would undermine an important adjudicatory function of religious arbitration: to adjudicate disputes that implicate religious conduct (for example, terminating a congregational leader for cause or defaming a religious individual for engaging in religiously prohibited conduct) which the Establishment Clause prevents from being adjudicated in court.
Finally, I think this type of debate is typical of what I’ve termed elsewhere (see e.g. here and here) the “new multiculturalism” where multicultural debates center not on symbolic integration but jurisdictional differentiation. In fact, my sense is that multiculturalism is increasingly becoming less about group recognition and more about group autonomy. If this trend towards the new multiculturalism continues, the debates in Oklahoma will truly be just the beginning.
It is distressing how Americans push for changes in the law because of personal fears. Instead of dealing with these fears in positive, trust-building methods, they rush to the legislature for a quick fix. They would rather give up their rights than confront their issues. And before they know it, all their rights have been eroded by their own initiative. It is even more worrisome that organizations that have championed government neutrality toward religion, and opposed “religious viewpoint discrimination,” are supporting those that discriminate against Sharia Law. Thus, they support discrimination based on the religious views of individuals, the thing they have so adamantly stood up for in the past.
I have read quite a few articles about the Oklahoma ballot and most of those articles refer to the New Jersey case where a judge ruled that a man did not rape his wife, because under his religion’s law—Sharia law—men cannot rape their wives. These articles allude to the fact that the real problem is that Oklahoma is scared that Sharia law will spread and become a controlling force in America. Although, what they fail to recognize is that by making a fuss about Sharia law, they propagate it to Americans. In fact, prior to all the publicity that Sharia law received this last year, I could not have told you exactly what it was.
The downside to these laws is that not only do they give away our freedom of religion; they take away our freedom to contract. No longer can Oklahomans contract with someone to use a different law as part of the terms of their agreement. Interestingly enough, if they made an exception for contracts, then a marriage contract would allow the very thing they are trying to prevent—woman getting abused, if they truly passed this law because of the New Jersey case.
This isn’t only an issue of freedom to contract under Sharia law. The laws being brought up in Oklahoma, Arizona and South Carolina are not narrowly tailored to merely banning Sharia law. For example, the Oklahoma ballot stated that the law “would forbid courts from looking at International law or Sharia law when deciding cases.” Not only would this affect contract law when dealing with foreign entities, it would also impact tort law. Under tort law, if a tort happens in Canada and suit is brought in the United States, prevailing tort law says to use the law of the jurisdiction where the tort occurred. However, now that Oklahomans can’t use international law this will cause problems with which law to use. If more states started to pass laws like this, a party could “forum shop” to find the law most favorable to their case and bring suit there.
To conclude, I feel like Americans rushing into the polls merely because the media has excited them about an isolated incident is naïve. Rather, they should use their G-d given wisdom to analyze the issue and find an appropriate response; not throw away rights that they will one day wish they had.
70% of the population wants it, that’s democracy in action. This law re-inforces the separation of church and state and defines that international cases have no place in state and local courts.
I agree that there are problems with the law. I do believe that any right minded judge would see that religious law has no place in criminal court and that only in very specific civil cases would the religious law apply. However, this nation has a shortage of right minded judges, and individuals, so we have to pass legislation to ensure that judges are steered in the proper direction. Furthermore, a court has no place hearing that a congregation doesn’t want its religious leadership anymore, handle that in the congregation, don’t waste taxpayer time and money.
So, the other issue is the exemption from international law. It seems like a bad idea, but at the state level, you should not be fighting an international case. Just as the first amendment legality of this statute was challenged within the federal court system, an international copyright or trafficking case should not be tried in Oklahoma courts. If international cases are being tried in Oklahoma courts, then the legal system should be reformed by laws such as this.
I am a little unclear on how this law reinforces the separation of church and state. If X and Y contract to use a certain law, whether it be Sharia, German or a law they made up, they should have the freedom to do that and be bound by it. This is an individual choice and courts should hold X and Y to their contract. It is irrelevant what type of law it is. By upholding the contract the court is not promoting what they contracted to, it is merely upholding the common law. For example, if X’s and Y’s contract defined a minority as anyone under the age of 25, a court upholding that clause would not be saying that in every issue of every case a minority is now someone who is 24 or younger.
I just don’t see how the separation of church and state are enhanced or hindered by allowing someone to contract to what they want to. On the other hand, passing statutes like OK’s is a clear violation of multiple rights.