Posted by Professor Martha Davis, Northeastern University School of Law
On August 15, a federal district court in Oklahoma struck down the state’s constitutional amendment barring consideration by state court judges of Sharia law, international law and “legal precepts of other nations or cultures.” The amendment was passed by public referendum in November 2010, garnering more than 70 percent of the popular vote; it had been subject to a preliminary injunction since its enactment, and the 10th Circuit Court of Appeals previously ruled that the amendment’s anti-Sharia language likely violated the first amendment. The August 15 district court opinion entered a permanent injunction striking down the amendment. Though the Court of Appeals has already indicated its view of the first amendment issue, the state may yet decide to appeal this most recent ruling to the 10th Circuit Court of Appeals.
Despite its legal infirmity, Oklahoma’s enactment triggered a wave of similar proposals in at least 32 other states. While most were not enacted, neighboring Kansas adopted an anti-Sharia statute, as did South Dakota, Tennessee and a handful of other states. The wave has not lost steam, as still more proposals – notably in Florida and North Carolina — were considered in states’ most recent legislative sessions.
In contrast to Oklahoma’s constitutional amendment, most of the subsequent proposals and state enactments have not singled out Sharia law for particular scrutiny, but have imposed general bans on judicial consideration of foreign or international law. At the same time, the debates around the proposals have been fueled by anti-Sharia sentiments and unsupported fears that state courts are being co-opted by Islamic extremists. Legal challenges have yet to be mounted against these measures, but the Oklahoma ruling suggests that even in the absence of explicit reference to Sharia law, these more neutrally worded statutes still run afoul of first amendment protections.
The American Bar Association has taken a strong stand against these proposals. Not only do attempts to ban consideration of Sharia law violate the first amendment, but more extensive attempts to ban consideration of international and foreign law altogether are directly contrary to our common law legal system as well as, in some instances, the Supremacy Clause of the United States Constitution. Certainly, they compromise judicial independence and violate notions of separations of power. Further, many business groups have expressed a bottom line concern about these measures, which may make it difficult for international businesses to operate within affected states. For example, Oklahoma’s oil business would have been negatively affected had the ban gone forward, since many of the contracts under which companies operate are explicitly subject to foreign law. If the ban had been upheld, companies could not have relied on Oklahoma courts to enforce their contracts, since judicial enforcement would be impossible without analysis of foreign law. Similar dilemmas may arise in the family law area, where couples may have been married under foreign law (two of the Oklahoma plaintiffs were married under Scotland law), yet are seeking dissolution of the marriage in state courts. If a judge cannot consider foreign law, it may be impossible for the court to ascertain at the outset whether the marriage is even valid.
More affirmatively, state courts and judges may benefit immensely from looking to other legal regimes for inspiration and models. In the age of internet and international travel, more and more judges are knowledgeable about the larger international context for their decisions – and surely the public deserves judges who are exercising this sort of wisdom. The U.S. Supreme Court, for example, has repeatedly cited international human rights law in its consideration of the death penalty in the U.S. While the Court’s decisions are indisputably supported by U.S. law, reference to international human rights standards is an important touchstone in ascertaining whether the U.S. is living up to its constitutional and international commitments. This is equally true at the state level, since states bear significant responsibility for implementing many of our national human rights obligations, from civil rights to housing to access to water. The blinders required by the erstwhile Oklahoma law and its copy-cat successors would be a troubling step backward for our independent judiciary, a system of courts and judges that is currently the envy of the world