One of the strangest and saddest results from last Tuesday’s elections was the approval by Oklahoma voters of an amendment to their state constitution that would prevent Oklahoma courts from considering “the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.” Rarely does one come across a law so clearly based on religious discrimination and xenophobia. Or one so deeply at odds with fundamental legal principles.
Thankfully, a federal judge has precluded the amendment from taking effect while the court considers whether the law is unconstitutional. It clearly is.
The suit challenging the law was brought by Muneer Awad, a Muslim resident of Oklahoma who argued that that law discriminated against Muslims in violation of the First Amendment to the United States Constitution. He noted, among other things, that the law would preclude an Oklahoma court from probating his will because certain provisions were based upon his religious obligations, even though those provisions were entirely unobjectionable and even though a court would enforce similar provisions in the will of a non-Muslim. He also noted that the very existence of the law stigmatized Muslims.
While there is little doubt that the “Sharia” provision is unconstitutional, other aspects of the law are equally problematic. For example, Oklahoma seems to have prohibited its courts from considering treaties of the United States, even though the Supremacy Clause of the U.S. Constitution makes such treaties “the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” The amendment also ignores the fact that courts consider the law of other nations every day. Any time that a dispute arises at least partially in another country, a court hearing that dispute must decide whether the law of that country or the law of the forum applies. While such “choice of law” analysis is an ordinary feature of the what state courts do, Oklahoma would ban it. Similarly, contracts are often written with a provision stating what law will govern the interpretation of the contract. But the Oklahoma amendment would override such provisions any time the parties choose foreign or international law. The amendment also would appear to make foreign judgments unenforceable in Oklahoma courts. The list goes on and on.
In short, the law betrays a shocking ignorance about the way international and foreign law function in our legal and constitutional order. If allowed to take effect, the law will enshrine not only bigotry, but chaos. There is, however, every reason to believe the law will not survive constitutional challenge. Yet, that is cold comfort. The drafters of this misguided law were able to convince 70% of Oklahoma voters to approve it. Such antipathy and mistrust toward even the most ordinary applications of international and foreign law should give pause to anyone who believes that international human rights law has a role to play in our courts.