Oklahoma Outlaws Sharia Law

When I heard that there was a ballot initiative in Oklahoma to make Sharia Law illegal, it struck me as profoundly silly. For one thing, there’s no evidence that anyone in the Oklahoma legislature was attempting to impose Islamic law in the Sooner State. For another, Muslims make up a tiny percentage of the population there (according to the 2000 census there were 6,000 Muslims in the whole state). Despite it’s profound silliness, though, I can’t say I’m surprised that the initiative passed with an overwhelming margin of victory:

Oklahoma on Tuesday approved a ballot measure blocking judges from considering Islamic or international law when making a ruling.

Nearly 70 percent of voters in the state cast ballots approving the measure.

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.”

Opponents of the measure pointed out that the First Amendment bars Congress from make any law respecting the establishment of religion.

The proposition also faced criticism from Muslim leaders who have said they intend to challenge it in court.

Presumably, the challenge would be on First Amendment grounds and it strikes me that such a challenge would have a fairly decent chance of succeeding.

FILED UNDER: Campaign 2010, Islam, Quick Takes, Religion, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Mithras says:

    This law is operative when someone comes to court either to sue on a contract governed by religious principles or to enter a judgment regarding the contract from a religious tribunal. The Islamic marriage institution of mahr is an example. Presumably such contracts would now be unenforceable in Oklahoma, but contracts based on Jewish or Catholic law, for example, would not be. I doubt the challenge to the law would be based on the Establishment Clause, but rather on the Free Exercise Clause.

  2. sam says:

    There’s a clear equal protection violation, plus a violation of the right of contract. See, Eugene Volokh on Islamic Law in US Courts:

    As I’ve argued before, I think courts should indeed generally enforce religiously inspired contracts, whether prompted by an Islamic marriage, a Jewish marriage, or other events, so long as the contracts expressly set forth obligations in terms that courts can enforce while applying neutral principles of contract interpretation law. Courts should also generally be open to enforcing arbitration agreements where the arbitrators are applying religious law, pursuant to the terms of a contract that calls for such law (though I’m not sure how U.S. law would treat such arbitrations if there is evidence that the tribunal may have applied sex-discriminatory or religion-discriminatory procedural rules).

    I also think courts should be open to applying, say, Saudi law — which incorporates Islamic law — when the normal choice-of-law rules (where related to contracts, torts, family law, or what have you) call for the application of Saudi law, just as similar rules call for the application of Canadian law or Mexican law in other cases. If there is some public policy objection to a particular aspect of Saudi law, that aspect wouldn’t be enforced (just as speech-restrictive European law wouldn’t be enforced in defamation cases filed in U.S. court); but that is no reason to generally reject the application of Saudi law in other contexts. The courts wouldn’t be deciding what true Islam calls for, but just evaluating what legal rules are actually part of the Saudi justice system.

    The equal protection violation arises because the law singles out Sharia and not, say, Jewish law as applied by a Beth Din governing a contract.

  3. Michael says:

    I wonder if the ban means that judges also could not use biblical law when it happens to coincide with identical Islamic. Sharia law forbids homosexual marriage after all.

  4. Tano says:

    You mean 30% of Oklahomans are voting if favor of Sharia Law??? And so it begins….
    🙂

  5. Simon says:

    To challenge the ban in court, they would have to argue that Doug is wrong, and that they do intend to enforce Sharia law; if they don’t, their injury is speculative and they have no standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Mainstreet Org. of Realtors v. Calumet City, 505 F.3d 742 (7th Cir. 2007) (Sykes, J., concurring). And on the merits, sharia law is not the same animal as canon law. The Free Exercise Clause may protect the “power of religious organizations ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,'” EEOC v. Catholic University, 83 F.3d 455, 462 (DC Cir. 1996) (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952), but it doesn’t license the creation of a cancerous imperium in imperio, and fear of the implementation of such is a legitimate concern for voters to address.

  6. Franklin says:

    Phew! I know I can rest easy tonight.

  7. Mithras says:

    “sharia law is not the same animal as canon law”

    Who says, Simon? We already have mechanisms in place to prevent contracts from implementing principles that violate public policy. But within those bounds, the law must treat all religions neutrally.

  8. Nightrider says:

    It was on the ballot in the first place to rile up conservatives. When a court strikes it down, they can rule up the conservatives all over again about activist judges. So long as you are ok with the notion that all politics is cynical, it is the gift that keeps on giving.

  9. Al says:

    You’d think with Oklahoma’s history with terrorism that they’d want to outlaw white supremacist groups.

  10. Simon, I disagree.

    First, the challenge would not be on First Amendment grounds. It would be on equal protection grounds and, more interestingly, substantive due process or privileges and immunities grounds. I say this because the only realistic way an Oklahoma court would ever have to confront Sharia law is if parties to a private contract agreed on a choice-of-law provision to an arbitration clause, and that provision that selected Sharia as the substantive law upon which the dispute was to be resolved. People should be able to pick their own rules for how disputes are to be resolved. This does not create a “cancerous imperium in imperio” because such a provision is entirely voluntary and confined only to the parties to the arbitration agreement.

    Second, because of this, standing would arise from any party who wished to seek judicial confirmation of a private arbitration agreement. There would not need to be any Oklahoma judge stepping up to the plate and telling the voters that he wanted to enforce Sharia law.

    Third, Sharia law is exactly the same animal as Canon law. There is substantial overlap in the substantive provisions between the two. This is hardly surprising because both bodies of law are derived, ultimately, from Abrahamic monotheistic religious traditions which are in turn, ultimately superstitious nonsense left over as cultural relics from the Bronze Age middle east that really don’t have a lot to do with what’s happening in the world today but which large numbers of people nevertheless seem to like.

    The same Constitutional right that protects my right to call these things “superstitious nonsense” also protects the rights of those who disagree with my characterization of them to adhere to them, provided they do not materially harm others in so doing — so if someone wants to arbitrate a dispute using principles of Sharia law before an imam in Oklahoma, the right attitude of the courts there should be, “It’s your dispute, do what you want with it and live the results.”

  11. Patrick T. McGuire says:

    “Presumably, the challenge would be on First Amendment grounds and it strikes me that such a challenge would have a fairly decent chance of succeeding. ”

    And what about the separation of church and state? I thought that was supposed to be enshrined in the First Amendment as well.

  12. PD Shaw says:

    I would think the starting point would be void for vagueness, since I don’t think there is something called Sharia law.

    But I also wonder if this would make terrorism convictions harder. The prosecution of attempted terrorists have included experts explaining the connotations of religious terms used by the defendants to help establish their intent to commit terrorist acts. The defendants hire up their own experts. Does this place the court in a position of “considering or using Sharia law”?

  13. Alex Knapp says:

    I imagine this would lose on supremacy clause issues as well. Treaties are international law, and treaties are the law of the land under the Constitution, and trump state provisions.

  14. Alverant says:

    It’s a symbolic law plain and simple. The good thing is that it can be used as a basis for a law or ruling that affects christian law the same way since all religions have to be treated equally. Then the conservatives will have to deal with the consequences of their actions.

    Was it OK or AR that tried to ban Richard Dawkins from coming to their state? Either way it sounds like christian law has already taken root.

  15. m says:

    They have saved us. /s

  16. IraM says:

    I feel so much better. I was planning a trip that would take me through OK, and I love to stop and eat some good B.B.Q , well little did I know I could be stoned by Sharia law. Now I can eat my B.B.Q. and just be stoned. Thanks OK voters, that’s what America is about.

  17. Chris says:

    hahahahahahahahahahahah….heeheeheeheeheeheeheehee….hohohohohohohohohohoh…oh my gut hurts, hahahahahahahah….whew, what a sack of monkeys, please secede, oh lord here it comes again…ha…hahahahaha

  18. Phil E. Drifter says:

    There is no god. Get over it. EVOLVE and be the best person you can in *this* life because it’s the only one you’ll ever get. Stop believing the oldest scammers of all time: priests/clerics/whatever the f*ck jews call their ministers. Get over the silly, childish fairy tales of ‘life after death.’

    Stop giving your money to the church/mosque/synagogue and give it to childrens’ hospitals. The pop has enough Prada shoes and Rolls Royces.

    Stop protecting pedophiles.

    Give your money to ME. I’ll gladly tell you whatever you want to hear about what will happen to your ‘soul’ after you die. Just give me a big down-payment first and I’ll tell you anything you want to hear.

  19. Phil E. Drifter says:

    Sigh.

    ‘pope,’ not ‘pop,’ obviously, but I have to correct my quick typing before some religitard attacks me for it and tries to call me dumb because I made a silly typo.

  20. Phil E. Drifter says:

    Nothing trumps the Constitution, Alex, and certainly not to me.

  21. Blue Shark says:

    …A little known rider on the bill also outlawed the Boogie Man.

    …Man, do I feel safer!

  22. george says:

    Outlawing Sharia Law?

    That is the stupidest, non-initiative Ive seen this month.
    We have about as much a Sharia Law threat in this country as we have an Injun Uprising Threat.

    They should focus on combating Judaization because that is what is wrong with This country, not Islamitization.

  23. If only it was Michigan.

  24. arthur says:

    It only takes a glance at Asia, Europe and Africa to see the slow demolition of cultures, the same demolition that has already began to engulf our own. Twenty years ago there were no “sharia courts” in England. Today there are eighty-five. If we treat islam like any other religeon we are guarranteed to lose our culture and EVERYTHING in life that we value. This is a political force that threatens us in a more vile manner than the great Russian military ever did. God help us.

  25. Robert says:

    Article 1 Section 1 on the US Constitution says that only Congress can make our laws. It would be unconstitutional for a judge to consider Sharia law.