The amendment, approved in November 2010 by 70% of Oklahoma voters, declares that state courts “shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.”
As the American Bar Association Journal notes, the appellate panel writes that the wording of the amendment “implies that whatever religions the legislature considered to be part of domestic or Oklahoma culture would not have their legal precepts prohibited from consideration, while all others would,” the opinion continues. Hence, “because the amendment discriminates among religions, it is ‘suspect,’ and ‘we apply strict scrutiny in adjudging its constitutionality.’ ”
Pamela Geller had this to say:
We are screwed.
This is a complex issue and dabbling in it, poor legal language is a recipe for failure. David Yerushalmi and Robert Muise should have been arguing the case. Join me at AFDI/SIOA Event at CPAC 2012, Islamic Law in America.
It’s not religious law, sharia is political law. How can anyone oppose a law that seeks to prevent foreign laws from undermining fundamental constitutional liberties? We all accept that state and federal constitutional rights to a jury trial in CIVIL cases can be waived almost by default (thus two parties agreeing to be bound by German or French law where there is no jury trial right in a civil matter) would not be affected by the bill since the jury trial right is per the law waived by default.
But there is no jurisprudence in the federal system and none in any state that would allow a party to waive Equal Protection—that is, could an african american agree to be discriminated against by the state? Absolutely not, so why would we allow a party to “waive” an equal protection claim in court where the state’s police power is being used to enforce an offensive foreign law?
We now have groups that has ever come to this country with a ready-made model of society and government they believe to be superior to what we have here and are working to institute it.
And Robert Spencer comments:
This ruling has come because of Leftist judges who don’t know anything about Sharia and have swallowed the smooth deceptions of Islamic supremacist groups like Hamas-linked CAIR, but it can also be attributed to the fact that the laws themselves have not been focused properly. Americans want to outlaw the elements of Sharia that interfere with Constitutionally protected freedoms, not Islam as an individual religious practice, but in response, Islamic supremacists claim that Muslim religious freedom will be infringed upon.
The point has to be made that these anti-Sharia measures are aimed at political Islam, an authoritarian ideology at variance with the Constitution in numerous particulars — notably, in its denial of the freedom of speech, the freedom of conscience, and the equality of rights of women and non-Muslims. But unfortunately, even many of the proponents of these measures are unable to make this case effectively.
American Laws for American Courts is the way forward. For a discussion on where the Oklahoma “Save Our State” amendment went wrong and how ALAC will solve the problem, see Christopher Holton‘s September 18, 2011 article at American Thinker:
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.