I am of two minds about the recently passed State Question 755 in Oklahoma.
This is the measure that bars Oklahoma state judges from using international or religious law, specifically Sharia law, to guide their decisions. It was passed by over 70 percent of Oklahomans.
It’s problematic to say that it would forbid judges from using international treaties to guide their decisions as some of the opponents have claimed. International treaties are part of international law, it’s true. They are also, once ratified, part of federal law and therefore subject to the same use as any other federal statute.
It is also problematic, however, that the “Save our State” amendment singles out Sharia law. Please do not misunderstand: I do not want Sharia law implemented in the United States. It is a blight on the Muslim world. That judges are referring to it in England is frightening in the extreme. Indeed, there are 85 Sharia law courts in England.
However, what got this amendment put on hold, and will probably get it struck down, is that it did not include, for instance, Talmudic law or Canon law — Jewish and Catholic law, respectively.
Few Americans would want those used in our court system either.
That being said, the First Amendment, at least as it’s currently interpreted, specifically forbids the use of religious law in American courts.
It’s also notable that a New Jersey trial court upheld a Muslim man’s right to beat and rape his wife based on his religion, and refused to grant the wife a restraining order. An appellate court very quickly slapped that particular piece of idiocy down.
Opponents of this law point to that decision and other similar ones and say, “See, Sharia law will never come here.”
It is true that using Sharia law to decide cases in the U.S. would be against all precedent. And that’s one of the great strengths of our legal system — it’s reliance on precedent. However, it’s also one of the great weaknesses. Should some liberal nut of a judge somewhere decide to use a justification from Sharia law one time, then the precedent is set, and enterprising lawyers will expand upon it.
This is not as far-fetched as it sounds. In 2009, Justice Ruth Bader Ginsburg decried the fact that American courts did not look enough (in her not so humble opinion) to international courts and “world opinion” in making decisions.
I find myself somewhat in agreement with the proponents of this amendment in that I do not want the Sharia camel’s nose under the tent, as we’re too likely to end up sleeping with the camel.
At the same time, I find myself somewhat in agreement with the opponents who say this new law is unneeded at best and bigoted at worst.
It does, in fact, single out Muslims. At the same time, you’ll be hard-pressed to find a Christian or Jew who will try to use his religion as an excuse to slap his wife around (and in the New Jersey case the man’s imam refused to say what he did was wrong).
I also understand the fears of those who are saying laws of this sort stigmatize Muslims and promote fear of Muslims among the American people.
But these people roundly miss the point. The American people understand that radical Islamists have been attacking us. Some of these enemies of America are American-born like Anwar al-Awlaki, who is now in hiding in Yemen.
The American people also note that American Muslims, for whatever reason, do not speak out against the extremists in their midst.
And that’s the problem.
This particular law is probably ill-advised at this point. However, the reason this law was passed, and others like it probably will be passed, is because American Muslims are not standing up and saying that what men like Nidal Hasan, the alleged Fort Hood shooter, and al-Awlaki have done is wrong.
The stigma the Council on American-Islamic Relations and other opponents of this amendment are complaining about will continue to exist until they make it clear their first loyalty is to the United States of America.