Oklahoma Sharia Law Ban May Also Ban Ten Commandments

A new Oklahoma law that bans Sharia law from being enforced in state courts may have some very unintended consequences.

As I noted last week, the citizens of Oklahoma decided last week to respond to an overwhelming nationwide economic crisis and skyrocketing national debt by passing a referendum that bans Sharia law. As one Oklahoma law professor notes, though, the referendum is so broad that it bans far more than just Islamic law from being considered in Oklahoma state courts:

Oklahoma voters on Tuesday approved a measure that bans the application of Islamic law and orders judges in the state to rely only on federal law when deciding cases. State Rep. Rex Duncan, a Republican, was the primary author of the measure, which amends that state constitution.

For months, legal experts had lambasted the initiative as biased toward a religion and potentially harmful to local businesses that engage in commerce with international companies. It also presents potential constitutional law problems, experts say. Is Oklahoma’s state constitution now in direct conflict with the U.S. Constitution’s First Amendment, which states, “Congress shall make no law respecting an establishment of religion … “?

There has never been a previous case in the state in which Sharia law was applied, said Rick Tepker, the first member of the University of Oklahoma School of Law faculty to try a case before the U.S. Supreme Court.

Tepker called the passage of the measure “a mess” with implications unknown until a case that challenges it arises.

“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.”

In addition to the Ten Commandments, there are other, more secular, areas where this ill-advised law is likely to have unintended consequences. Native American tribes based in Oklahoma have already expressed concerns that the law will limit their ability to enforce tribal law on their reservations, for example. Additionally, business contracts have traditionally included what are called “Choice of Law” provisions which require that the law of a particular state would be applicable in interpreting it’s provisions. In an increasingly international business world, those provisions have expanded to include laws of other countries. If , for example, an Oklahoma company seeks to enforce the terms of a contract that provide that Canadian (or Mexican) would apply, then this law would make it illegal for a Court to abide by the terms of the contract.

As I noted on Wednesday when I first wrote about this, the fact that there are fewer than 10,000 Muslims in the entire State of Oklahoma makes this law seem entirely silly. Add to that the extent to which it will impact areas of the law that having nothing to do with Islam, and you’ve got yourself a really stupid law. Way to go, Sooners.

FILED UNDER: Islam, 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. sam says:

    “Tepker called the passage of the measure “a mess” with implications unknown until a case that challenges it arises.”

    I believe a suit has been filed challenging the law. The plaintiff, a Moslem, is alleging the law impinges on his right to write his will as he sees fit, incorporating into it certain provisions resting on Islamic law. I’d guess he’s arguing that this interferes with his right to dispose of his property as he sees fit without a compelling state interest in so interfering.

  2. I hadn’t heard about the lawsuit but, yea I think it will be the first of many.

    I don’t see this law surviving a challenge

  3. DC Loser says:

    Well, this is one way of getting all religions out of the law.

  4. John Burgess says:

    The law as passed treads on so many different, constitutionally protected rights that it is guaranteed to fail at the first push against it.

    Here’s the complaint (27-page PDF) filed by Awad on his concerns about his will.

  5. John Burgess says:

    Oh… I should point out that CAIR is funding the suit. This time, they’re right.

  6. sam says:

    Yeah, suits seeking resolution of contract disputes involving Oklahoma companies doing business with companies in foreign countries, as you say. How’s that for fostering an environment of uncertainty for business?

  7. PD Shaw says:

    I’ve already opined that the law is stupid, but this is silly:

    “I would like to see Oklahoma politicians explain if this means that the courts can no longer consider the Ten Commandments.”

    The Ten Commandments are not in the Koran, and they are not the teachings of Mohammad. They are not precepts of a foreign culture, unless your culture is academia. You don’t have to be a dominionist to believe that the country’s culture is based upon a judeo-christian history.

  8. MarkedMan says:

    PD Shaw: The ten commandments are not precepts of a foreign culture, but Sharia is? Why? The ten commandments are part of Sharia law. Muslims are “people of the book” as are Jews and Christians. Or are courts supposed to know the bible well enough to single out those parts of Sharia that have no corollary in those other two religions (which our government should favor over other religions because, why?)

    I think a bigger mess might be the concept of English Common Law, which as I understand it, comprises the bulk of our legal tradition. And of course, Louisiana gets screwed again, because their system is based on French Common Law. French! Off with their heads!

  9. Alex Knapp says:

    PD – The decalogue is, in fact, part of Muslim religious traditions.

    As for “the country’s culture is based upon a judeo-christian history.” This isn’t completely true. Heck, if you just look at the Ten Commandments themselves, you’ll see that apart from the Commandments that are universal across cultures (do not steal, murder, or bear false witness), American law is either silent or in direct contradiction. (For example, we are just fine working on the sabbath and making graven images.)

  10. PD Shaw says:

    Marked Man: The term “Sharia law,” which I find ambiguous is defined in the law as being “based on the Koran” or the “teachings of Mohammad.” The Ten Commandments are not in the Koran, and even under Muslim traditions, the Ten Commandments are the law of Moses, though transcribed and passed down in error by the Jews.

  11. rodney dill says:

    Why is this a problem? The parts that dictate behavior like, ‘Thou shalt not kill’ are already imbedded in law. The parts that endorse religion, aren’t used as law, (at least to my knowledge) except maybe by some extreme judges.

  12. PD Shaw says:

    Alex, I didn’t mean to suggest that our culture is based exclusively upon a judeo-christian history. I live in a state capitol and it would not take much effort for me to find depictions of Moses, the law giver, dating back 150 years on government buildings. There are also depictions of Greek figures, such as wisdom or justice. I think the use of Moses and the Ten Commandments is similarly symbolic, he represents the rule of law in our culture.

  13. ponce says:

    judeo-christian “history?”

    Is there such a thing?

    Don’t most religios admit that the bible is mostly a fairy tale?

    Or at least that there is scant evidence it’s “history.”

  14. Contracts says:

    You live in a state capitol? They rent apartments in those things now?

  15. sookie says:

    I”m OK with the law prohibiting the 10C as such. I mean really, we can write a law which makes murder and theft (even adultery) a crime without referring to the 10C or God or religion as the basis. We would be appalled if the legislature or an initiative petition tried to put one on the books about keeping the Sabbath or having no other gods before Him.

    The guy who wants to will property can do so just about any way he wants within his will, just don’t mention Sharia law as the basis for that will.

    This was as much about not following international law as sharia but honestly I don’t think ‘Christian’, ‘Jewish’, ‘Sharia’ (or International) law really has any place in our State civil and criminal code as such. Even if all religions contributed to the culture and societies from which our body of laws grew out of.

    This is just silly.

  16. PD Shaw says:

    Gotta bring in revenue somehow.

  17. PD Shaw says:

    My last comment was in response to Contracts.

  18. G.A.Phillips says:

    ***Heck, if you just look at the Ten Commandments themselves, you’ll see that apart from the Commandments that are universal across cultures (do not steal, murder, or bear false witness***Not anymore, lol……..

  19. Robert S says:

    So, Oklahomans have voted for banning the practice of Sharia Law in their state? Was Sharia Law being practiced? If it was then I definitely support the ban. If Sharia Law was not being practiced then why worry about it?

    If you want to ban something – just in case – how about we start with “No nuclear devices are allowed to be sold, carried or detonated in a public place, or a private home in the State of Oklahoma”.

  20. MarkedMan says:

    The whole point of my objection is the silliness of the law in the first place. Banning laws based on foreign traditions? It’s either unnecessary if applied lightly, or impossible if applied literally. Some court is going to have to rule on what it means. This is what Oklahomans are spending their time on? Would a serious corporation put a significant business unit there and then try to attract executives to staff it? You would never even get that far as the other states competing for the business would just immediately key on it. “Why do you want to locate there? The government is a bunch of yahoos and you have no idea what they will do next.”

  21. george says:

    Given that much of the US legal system came from its start as English colonies, wouldn’t that mean that strictly speaking most of Oklahoma’s laws are now illegal … that is, they come from a foreign country (England)?

  22. bob says:

    You all should read the law and not speculate. It specifically states common law is part of the jurisprudence. And Sharia is a legal system just like US law. It has no basis for being considered by a Judge which I assume tribal councils are not.

  23. bob says:

    Here is the actual admendment

    The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

    It applies only to courts not any where else. It says use our laws and those of the USA. Now what is wrong with that?

  24. sam says:

    Well, here’s some problems. Eugene Volokh:

    I’m no fan of the amendment, which would also apparently ban the use of foreign law in Oklahoma courts, even in situations — such as disputes about whether two people were validly married in a foreign country, enforcement of contracts that provide for the use of (say) British law, and tort litigation over conduct that happened in a foreign country — where foreign law has long been used under standard choice-of-law principles. (http://volokh.com/2010/11/09/district-court-temporarily-enjoins-oklahoma-no-use-of-shariah-law-in-court-constitutional-amendment)

    And while he thinks the ban on Sharia law may be unconstitutional, he also thinks Awad lacks standing to sue.