Welcome to the Next Cycle’s Wedge Issue

by Transplanted Lawyer

(Cross-posted from Not a Potted Plant)

Once upon a time, illegal immigrants getting welfare were used as whipping boys to drive voters to the polls. Then it was gays trying to get married and atheists not wanting to say the Pledge of Allegiance. Next, it’s about to be… Muslims! Specifically, Muslims with the temerity to use the courts. The preview is to be found in the great state of Oklahoma, where voters will shortly be presented with Measure 755, asking Oklahomans the following:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law. International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

Shall the proposal be approved?

Now, I suppose the first question that may come to your mind is, “Wow! Is this really happening in, of all places, Oklahoma?”If you check the Pew Forum on Religion & Public Life’s recent U.S. Religious Landscape Survey, you’ll find the most recent, statistically reliable data about the religious composition and behavior of people in the United States. There, we find that the religious makeup of Oklahoma is as follows:

(For the record, Oklahoma has the highest percentage of self-identified Evangelical Christians of any state in the nation.)

So, it would seem unlikely that there is a lot of demand on Oklahoma courts to address Muslim issues, what with Muslims constituting such a small percentage of the population there (about 15,000 total). And, in fact,“the amendment’s sponsors and strongest supporters cannot statutorily cite a case in which Oklahoma courts have applied Sharia law in any ruling.”

I’m not exactly sure what Marc Ambinder means in the previously-linked article by the phrase “statutorily cite a case.” Authors of legislation rarely cite to case law in statutes, except when they wish to legislatively reverse specific cases (e.g., the Civil Rights Act of 1991, statutorily reversing Wards Cove Packing Co. v. Atonio (1989) 490 U.S. 642, thus giving lie to the idea that once the Supreme Court has spoken on a subject, the Constitution must be amended to reverse its effect). I presume, though, that Ambinder means that while these legislators don’t like the idea of Oklahoma courts applying Sharia law, they can’t find any examples of that actually happening.

But note that the issue is one of using Sharia law to interpret the Constitution and laws:  “[Measure 755] makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.” Let’s unpack that:

Measure 755 makes courts rely on federal and state law when deciding cases. Do you mean to suggest they aren’t already doing that now? Of course they are.

I’ll take the next one out of order.  Measure 755 forbids courts from considering or using Sharia Law. This despite the fact that the sponsors of the law can’t seem to find a single instance of that actually happening. The only instances that I can find anywhere — or that legal scholars with unlimited, free access to state-of-the-art legal research tools have found — are cases involving family law and small business commercial disputes in which principles of Sharia law were specified to in choice-of-law clauses of contracts containing mandatory binding arbitration agreements.

So what this would really do in practice is prevent courts from enforcing private contracts in which the parties mutually agreed upon the use of Sharia laws — restricting the right of free people to contract as they choose. What’s more, it would not restrict the right of people to use other kinds of religious texts as the basis for their contracts that include arbitration clauses; one would be free to agree to “Christian arbitration” or “Talmudic law” as the choice-of-law in a private contract. That, of course, is somewhat problematic under existing Equal Protections jurisprudence.

One wonders what impact this would have on tribal courts in Oklahoma — a not inconsiderable issue, given Oklahoma’s racial and political demographics — because those courts rely upon tribal law which, in some cases, are based upon ancient tribal religious traditions. As noted in articles linked above, tribal leaders in Oklahoma are against Measure 755 not because they like Sharia law and Muslims so much, but precisely because they want to protect their own traditions and religions. They, at least, get it that when one group of people are singled out, there’s no telling which group is next, so everyone needs to be vigilant about the rights of even disliked minorities.

Now, back to the second point.  Measure 755 would forbid courts from considering or using international law. International law is defined in Measure 755 as “international agreements, as well as treaties.” Which means that an Oklahoma state court would have to disregard international agreements and treaties if those were invoked in a particular dispute. Like, say, NAFTA. Or extradition agreements. Now, in theory, if a party to a case invokes a treaty, that may invoke Federal removal jurisdiction, but that isn’t always the case. So you could be left with a state court required to disregard a treaty ratified by the Senate, and thus break an international commitment of the entire nation.

The authors of Measure 755 should read Article VI of the United States Constitution. Doing so would remind them that they are obligated as state legisators to uphold the United States Constitution and treaties made thereunder — something which they are in fact attempting to subvert with this law.

And then there’s the question of why, exactly, they are so afraid of Sharia law anyway. Sharia are practical legal principles derived from the Koran (the holy book purportedly written by Mohammed) and the Hadith (a collection of sayings attributed to Mohammed by oral tradition). Many of the teachings and commands of Sharia look a lot like the teachings and commands of, say, the Christian Bible. Worship is compulsory. Marriage is encouraged, children are encouraged within marriage, sex outside marriage is forbidden. Murder, theft, and dishonesty are generally forbidden. That’s not to say that everything in Sharia is above criticism. It’s to say that if you look into it a little bit, there is not much that is so awful it can’t be tolerated in a private arbitration agreement. If there are prohibitions against women being treated equally as witnesses or litigants, that subverts an important Constitutional policy, but the few cases I’ve looked at have generally broken in favor of the women litigants so it can’t be any worse than any of the more familiar religious choice-of-law clauses that ought to be enforced in courts for the very good reason that the parties to the agreement chose them.

Nor is anyone credible actually calling for Sharia law to supplant the Constitution as the supreme law of the United States. I don’t include the Osama bin Ladens of the world; bin Laden is not credible sitting in a cave in Afghanistan mere feet away from a dialysis machine powered by a car battery, on the glide-path to obscurity and burial in a dusty, anonymous grave. When a Congressional candidate from a major party says that he will propose an amendment to the Constitution to guide courts to rely upon Sharia, I’ll worry about this. Until then, this is a bogeyman.

But none of that is important. The facts don’t matter and they are, indeed, inconvenient. The point is to make people scared of the toothless shibboleth that is Sharia law and thus drive them to the polls to vote for meaningless-at-best and Constitution-subverting-at-worst wedge issues like Measure 755. Don’t fall for it — keep it in perspective, folks.