November 21, 2010

November 21, 2010 | Commentary on Legal Issues, Rule of Law

Sharia Law: Coming Soon to a Courtroom Near You

If you thought only U.S. laws ruled the land, you thought wrong — at least according to a crazy decision recently handed down by a federal judge in Oklahoma.

On November 2, Sooner State voters overwhelmingly approved a referendum that directs courts to “rely on federal and state law when deciding cases” and forbids “courts from considering or using international law” or “Sharia law.” Muneer Awad responded by filing suit, and Judge Micki Miles-LaGrange, a Clinton appointee, promptly issued a temporary restraining order, putting the people’s voice on hold.

The plaintiff asserted that his First Amendment rights would be violated if Oklahoma’s constitution was amended to implement this ban against consideration of Sharia law. The amendment, he claimed, would constitute official “disapproval” of his religion. Moreover, it would invalidate his last will and testament, which incorporates various teachings of Mohammed.

Judge Miles-LaGrange bought the argument that banning foreign law would inhibit the practice of religion — in this case, Islam — and lead to excessive government entanglement with religion. She confused the practice of religion — which is not banned under the referendum — with the imposition of a foreign body of law derived from Islam.

In coming to these erroneous conclusions, the judge misunderstands the purpose of the First Amendment, as expressed by the Founders. The Establishment Clause was solely intended to prevent a national church from being funded with tax dollars, and to prevent the government from favoring any particular religious sect.

James Madison, the chief proponent behind the enactment of our Bill of Rights, said the Establishment Clause meant that “Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” Judge Miles-LaGrange does not explain how Oklahoma’s amendment would “inhibit” a Muslim from worshiping in his own way as dictated by his own conscience. Nor does she explain how it would prohibit a Muslim from abiding by Sharia law if he chose to do so.

To appreciate how strange the judge’s decision is, imagine if Oklahoma had passed a law saying that state courts could not substitute Roman Catholic canon law for state and federal law. No serious person would protest that this somehow inhibited Catholics in the practice of their religion.

This thought experiment also illustrates the broader point that only state laws passed by legislatures or referenda — and U.S. laws passed by Congress — provide the rule of decision for issues that are properly before our courts.

If Mr. Awad wants to live his life by his perceptions of Sharia law, he is entitled to do so, to the extent that it is consistent with federal and state law. But no one has a First Amendment right to require U.S. courts to rule according to foreign laws, including those that implement religious views. (For an example of where such a requirement might lead, read this Cully Stimson post about a New Jersey trial judge excusing a husband’s criminal conduct “because under Sharia law, [a] Muslim husband had a ‘right’ to rape his wife.”)

Our society and legal system are flexible. We make reasonable accommodations for various religions. Throughout American history, religious principles have served as a basis for decisions in many different contexts, and our precedents and traditions recognize this. But neither Jews nor Christians are allowed to force their religious laws and views into our state court systems as a substitute for the laws passed by our elected representatives.

That difference is illustrated by an example. If a mortgage lender wants to structure a mortgage for a Muslim in order to satisfy certain Islamic principles prohibiting interest, the lender can certainly do so by writing the contract terms accordingly. But if a lawsuit is filed over the mortgage, the deal will be construed according to applicable state and federal mortgage and contract laws.

That is much different from adding a contract provision that says any court dispute over the contract will be resolved under Sharia law. Such a provision should not be allowed, as it would permit foreign, religious-based law to override our state and federal laws.

In a blatant example of political correctness run amok, Judge Miles-LaGrange concluded that granting injunctive relief would not be adverse to the public interest. She is wrong. Striking down a constitutional law passed by the direct expression of the public will is certainly adverse to the public interest.

One final odd note: Judge Miles-LaGrange didn’t enjoin the new law from going into effect, which is what a judge normally does when a court finds a law unconstitutional. Instead, she enjoined the state from certifying the election results, something I have never seen before. So Oklahoma is prohibited from declaring the official outcome of the election. Although that effectively prevents the law from being implemented, it is a bizarre holding that helps obscure the fact that more than 70 percent of Oklahomans approved the primacy of American law in their state court system.

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in National Review