Marci Hamilton

The Oklahoma Referendum Prohibiting State Courts from Applying International or Sharia Law

By MARCI A. HAMILTON

Thursday, November 11, 2010

On Election Day, Oklahoma voters approved a referendum that serves as an interesting microcosm of some of the most difficult challenges facing the United States now. The referendum amended the state constitution (via State Question Number 755) to forbid Oklahoma's courts from applying international law or Sharia law (also known as Islamic law) in any case before them.

The international-law prohibition is a fascinating attempt by Oklahomans to stave off the increasing and unavoidable globalization of our lives. In turn, the prohibition on Sharia law seems to be Oklahomans' reaction to the demonic Taliban and al-Qaeda forces that are pledged to end our way of life and America itself.

Most Americans understand Sharia law to be the motivating doctrine behind the violently radical Islamicists, and one can hardly fault the Oklahomans for seeking to build a legal barrier around their state to keep terrorism out. While the prohibition on the use of international law also presents interesting issues, I will focus here on the Sharia law prohibition. It is problematic.

What, Exactly, Is Sharia Law? The Ambiguity of Oklahoma's Amendment

The problem for the Oklahomans who thought they could forestall extremists and terrorists from taking over their culture via their referendum, is that there are many interpretations of what Sharia law mandates. Some Muslims, to be sure, have interpreted Sharia law to mean that believers and Islamic governments should commit horrific assaults and mete out barbaric punishments. Whether the act at issue is commandeering an airplane to kill Americans or chopping off a hand as punishment for thievery, there are plenty of reasons to condemn and reject the interpretation that reads Sharia law to mandate such practices.

But others sincerely believe in following "Sharia law," without such barbaric practices. The Oklahoma amendment, therefore, suffers from a serious case of vagueness. Which interpretation of Sharia law was intended to be targeted? What happens when a defendant argues that the plaintiff's theories must be rejected because they are derived from a world view or theory or belief that can be identified in the Quran? Does similarity to an Islamic law forbid a principle from being the subject of judicial consideration? This is a quagmire no judge is likely to welcome.

Some Oklahoma legislators defended the constitutional amendment on the theory that Oklahoma needs to secure and retain its Judeo-Christian foundation and heritage against Islamic assaults. But under our Constitution, officially privileging one religion (or several) over another is forbidden. Moreover, given such legislators' awareness of a Judeo-Christian continuum of beliefs, they must know full well that there is a wide range of interpretations of the Bible -- and thus, they ought to easily understand that the same is true of Sharia law. Rabid abortion foes have interpreted the Bible to require the killing of abortion doctors; others have interpreted the Bible to permit women to make choices about their own bodies. Sharia law, too, admits of widely contrasting interpretations.

The Constitutional Challenge to the Oklahoma Referendum

As soon as Oklahoma's Referendum 755 was enacted, an Oklahoma Muslim, Muneer Awad, filed a lawsuit arguing that it violates the Establishment Clause. For now, an Oklahoma federal district court has issued a Temporary Restraining Order.

Awad is likely to face an uphill battle on standing and ripeness alone: He may not be able to show any current, particularized harm to him that would make him a proper plaintiff, and as 755 has not yet been applied, it is not clear that a challenge to it can be brought at this time. However, the substance of Awad's arguments is worth contemplating as we think about 755.

According to Awad, his "faith is the motivation for much of what he does. From greeting others with a smile to waking for the customary prayer at dawn, [he] avails himself of the Islamic religious traditions evolving out from the Quran and Islam's prophetic teachings." In other words, he appears to be the mild-mannered Muslim who does follow a law that he would call "Sharia law," but his peaceable "Sharia law" is a far cry from the "Sharia law" of the terrorists.

Muneer Awad's Concern: Can His Will Be Probated As He Wishes, In Light of 755?

Awad's position provides an important window into what is wrong with the Oklahoma prohibition on Sharia law. He says that if the constitutional amendment goes into effect, that his estate will not be capable of being probated to reflect his intent.

More specifically, Awad's lawsuit explains, "Plaintiff's will directs the executor of his estate to prepare his deceased body in accordance with the prophetic tradition ‘enumerated in Sahih Bukhari, Volume 2, Book 23, Number 345,' ensure that the burial plot selected permits Plaintiff's body ‘to be interred with [his] head pointed in the direction of Mecca, and organize funeral prayers ‘in accordance with Sahih Al-Bukhari, Chapter 28, Section LIII, Number 1255, and the first paragraph of Section LV.' [He] also directs his wife to contribute to charity in accordance with Sahih Bukhari, Volume 4, Book, 51, Number 7." But, Awad worries, can such a will still be enforced and carried out, in light of 755?

This is a fascinating conundrum, created by 755. For Awad, the language of his will doubtless seems crystal-clear, but to a secular decisionmaker, it may not be as clear-cut as it seems to Awad. Thus, even without 755, Awad's will, by its terms, creates problems for the courts. According to the Supreme Court's Establishment-Clause jurisprudence, if there are competing interpretations of the religious texts that Awad invokes in his will, then the courts would be put in a position of determining the "official" or "correct" interpretation of those religious texts. That, they are not supposed to do.

Thus, even putting 755 aside, it would, ideally, have been better for Awad to define how he would like to be laid to rest without reference to the religious texts. For instance, Awad might simply have given instructions to a trusted imam and used his will to give the imam the power to carry out those instructions, or he could have described the actions he wanted others to undertake, rather than incorporating by reference religious texts.

Putting the Establishment Clause aside, however, what about 755? One could argue that asking the courts to apply standard contract law regarding a testator's intent does not run afoul of 755, even if that intent is based on Islamic beliefs. The court would not be asked to interpret or apply Islamic law, but only to use it as a guide to understand what the testator wanted. Once again, however, the biggest problem with the amendment may well be its vague contours -- and the resulting difficulty in ascertaining what it does, and does not, prohibit.

Here is where 755 gets it right: Courts are supposed to apply only civil, secular law to individuals before them. Sometimes those laws reflect Christian or other religious principles, but that does not make them Christian laws. For instance, the law against murder is a secular law, even though the Ten Commandments reflect a similar prohibition. From this perspective, the prohibition on courts applying Sharia law is really not that problematic.

This principle has played out in the clergy sex-abuse cases. The Catholic bishops routinely argue in such cases that Catholic canon law should determine a wide array of issues, including whether the bishops were negligent in dealing with an abusing priest, and what is the status of parish or property ownership. In other words, they have argued that courts should apply canon law, not civil property law. The bishops' lawyers work very hard to wrap their cases in canon law, so as to avoid the force and effect of the civil law. However, the overwhelming majority of courts have responded, correctly, by explaining that secular courts must apply neutral principles of law, including property and negligence law, and that they cannot and will not become the interpreters of canon law. They have canonical courts, in which they can employ canon law; canon law is not the appropriate arbiter in disputes in civil courts.

Thus, a directive not to use Sharia law as the governing law may be a non-issue. It may look anti-Muslim, but no other religious group has a right to have their religious doctrine determine secular law. On this reading, it is just a restatement of the rule of law.

Muslims have tried to substitute Sharia law in Canada (and elsewhere) for the secular law. That is a non-starter in the United States, where the separation of church and state would forbid such a move. There must be a public policy principle to support a law, not just a bare preference for a religious doctrine. Thus, the Oklahoma legislators were wrong to think that they could constitutionally secure Judeo-Christian "law" in the first place.


Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com .

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