Last week, Rick blogged about the recent passage of an amendment to Oklahoma’s state constitution which “would prevent Oklahoma courts from considering ‘the legal precepts of . . . international law or Sharia Law.'” In brief, Rick dismissed the amendment as unconstitutional and impractical, and I agree.

However, one commentor wrote that “Sharia is unconstitutional” and gave examples of “beheading apostates and homosexuals and stoning adulterers to death,” examples which would be of grave concern were they actually plausible. Obviously, as a human rights organization, EarthRights International is opposed to beheadings and stonings, and I thought I should clarify what is and isn’t at stake here, as there are a great many misconceptions about what the Oklahoma provision actually does, what Sharia is, and how Sharia might be used, without controversy, by courts in the United States.

First, as Rick noted, the Oklahoma provision applies to all foreign and international law.  This paints with a much broader brush than simply targeting Sharia law, and excluding international law (which is often binding on states) is clearly problematic.

Second is the question of what Sharia is.  Incredibly, the Oklahoma provision does not define it; although the ballot question states that Sharia is “Islamic law,” based on “the Koran and the teaching of Mohammed”–which is vague enough already–the actual constitutional amendment does not define it at all.  While Sharia is generally accepted to be derived from the teachings of Mohammed, scholars do not agree on its content, and Sharia as applied by different Islamic states is not uniform. 

More importantly, however, Sharia goes far beyond beheadings and stonings; Sharia is a complete system of laws, including family law, contract law, estate law, etc.  In some countries, Sharia is the primary form of law applied; most countries with a significant Muslim population apply a mixture of secular law and Sharia, including the U.S.-backed governments in Iraq and Afghanistan.  A country might reject traditional Sharia criminal punishments, for example, while adopting Sharia contract law.  This is not much different from the United States, where we adopt elements derived from some interpretations of Christian religious traditions as part of our law (Sunday closing laws, official holidays for religious occasions, abortion restrictions, gay marriage bans, etc.).

Third, it is absolutely correct that beheadings and stonings would be unconstitutional in the United States, but this does not justify an outright ban of Sharia and wholly ignores the ways in which Sharia might be, or is, actually used in U.S. courts.  Many opponents of the Oklahoma provision suggested that Sharia would never be applied in Oklahoma courts anyway, and so the law was simply a useless effort at religious discrimination.  That’s not entirely correct.  When cases in U.S. courts involve situations in foreign countries, courts often apply foreign law to the dispute, performing a “choice of law” analysis to see which law is most appropriate.  Suppose that two Sudanese refugees now live in Oklahoma.  One sues the other over a contract that they agreed to while living in Sudan.  Ordinarily, the Oklahoma court would probably apply Sudanese law–which is based on Sharia–to decide the case, unless that law were offensive to the public policy of Oklahoma. 

There’s no chance that a U.S. court would ever apply a Sharia criminal punishment, or any element of Sharia law that went against U.S. public policy, but ordinary elements of contract law, for example, could be applied when the dispute arises in an Islamic country.  In fact, ERI has cited Sharia law; in our amicus brief in Presbyterian Church of Sudan v. Talisman Energy, which involved human rights abuses in Sudan, we cited Sudanese law for its principles of agency liability (which are quite similar to U.S. law).

So no one is suggesting that a U.S. court would ever condone the criminal punishments of the most retrograde interpretations of Sharia.  What U.S. courts might do is apply foreign law, including aspects of Sharia law, to a case involving foreign parties or arising in a foreign country.