Monday, November 08, 2010

Where the Sharia Comes Sweeping Down the Plains

By Mike Dorf

By now, most readers will have heard of Oklahoma State Question 755, which, having been approved by ballot initiative, is now part of the state Constitution.  But much of the public discussion has tended to ignore the actual language adopted.  It stipulates that Oklahoma courts
when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.  The courts shall not look to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law.  The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
What to make of this veritable constitutional law issue spotter of a law?  According to a Salon article, a Muslim group will be challenging the law in court on Establishment Clause, Separation of Powers, and Supremacy grounds.  Let's take a look at those challenges (and a few others).

1) Religion Clauses.  Both the Establishment Clause and the Free Exercise Clause forbid government from singling out one faith for special benefits or burdens.  Although there has been controversy over the extent to which the Religion Clauses permit government to favor religion over non-religion, and there has even been controversy over whether the government can favor monotheism over polytheism, there is virtually no controversy over the question whether government can single out Islam for unfavorable treatment.  It cannot.

But does OSQ 755 actually disfavor Islam?  It could be argued that the new provisions simply use Sharia as an illustration of the sorts of sources to which Oklahoma courts may not turn.  That argument strikes me as just possibly sufficiently plausible with respect to the provision's second reference to Sharia to form the basis of a limiting construction by the OK courts: Under this view, state courts can only look to domestic, secular sources to inform OK law.  But even with respect to this second invocation of Sharia, that's a big stretch.  What, after all, do the good people of Oklahoma have in mind by "other . . . cultures?"  Presumably, this means that there are some cultures that do not qualify as "other," and presumably these are Christian or at least non-Muslim.

Meanwhile, the first invocation of Sharia Law is clearly not just illustrative.  An Oklahoma court can look to the law of a sister state that incorporates Canon Law, Biblical principles or even the Bhagavad Gita, but not principles derived from the Koran or the hadith.

2) Separation of Powers.  Here the argument is trickier.  The core idea is that it violates the separation of powers for a legislature to tell a court how to exercise the judicial power.  But stated that way, the proposition is false, or at least quite overbroad.  After all, jurisdictional statutes routinely tell courts what cases they can decide.  And provisions like the Dictionary Act of the U.S. Code are exercises by Congress of the power to tell the courts how to construe statutes.  The separation-of-powers argument would thus have to be narrowed: A  legislature cannot substantively constrain the interpretive discretion of a court deciding a constitutional case.  In addition, a state legislature probably can't tell a state court how to construe federal law.  But the exact limits on legislative ability to mandate interpretive rules for courts are quite complex.

3) Supremacy.  Here we have a collection of no-brainers.  International law embodied in treaties is binding on state courts whether they like it or not.  Customary international law is generally regarded as part of federal law as well, and insofar as it is, it displaces state law, including state law disavowing international law.  Here the more interesting question arises if one accepts the heretical view--put forward some years ago by Curtis Bradley and Jack Goldsmith--that customary international law is law only as state common law.  If that's true, then states can supersede customary international law by state measures such as OSQ 755.

4) Full Faith and Credit.  The Constitution obliges states to give full faith and credit to the acts, judgments and records of sister states.  OSQ 755 appears to forbid Oklahoma courts from doing so where the sister state's law in turn incorporates Sharia.

5) Severability.  There are nonetheless some uncontroversially valid applications of OSQ 755.  For example, suppose a lawyer argues that the Oklahoma criminal code should be narrowly construed in some particular because experience in France shows that broad construction on this particular would be counter-productive.  If the court discounts the argument based on OSQ 755, that might be bad for Oklahomans, but it would not be unconstitutional.  So, given how much of OSQ 755 does violate the federal Constitution, should it be held invalid in toto or only insofar as particular provisions are invalid?


Andrew said...

So what about common law? The question seems to prohibit it both as not "United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations" and more so as another nation's laws ("English" common law).

Jane Calderwood Norton said...

What if parties agree to be bound by Sharia Law under the terms of a contract? Surely there is no difference between the courts applying such a term and any other contractual term?

In any event, what is meant by law in this instance? I would argue that sharia law, as incorporated into a contract, rules of association etc is simply a "social norm" as opposed to law as such and therefore the court could still apply it regardless of what it says in the OK Constitution.

egarber said...

Even if the law in question is unconstitutional because it singles out a particular faith, that obviously doesn't stand for the proposition that Sharia law is therefore constitutional. So it's hard to see the end game in all this.

Is there any scenario where the Establishment Clause would allow such a secondary system, which would operate with the government's imprimatur? It seems to me that the most a Muslim could do is write wills, etc., with Islam in mind. But giving a "church" the power of probate unavoidably seems like state "establishment" of religion, no?

I mean, could Jewish Rabbinic courts possibly take root in the context of our First Amendment?

Michael C. Dorf said...

1) Andrew: Although the new provision doesn't mention state common law, I don't think it's best read to exclude common law. Although state common law may have historical roots in English common law, it is now best seen as emanating from state high courts themselves. (See Erie RR v. Tompkins.)

2) JCN: I think that most instances in which U.S. state courts would be asked to apply Sharia would be either because state choice-of-law principles select the law of a foreign sovereign whose own law incorporates Sharia (or purports to incorporate Sharia). Choice-of-law can also be directed by contract, and that could point to Sharia in a commercial setting or perhaps in a family setting. E.g., divorce for a marriage entered in an Islamic country could require the application of Sharia principles in resolving divorce-related issues. I think you are right that the application of Sharia law that is incorporated by contract in this way is not "really" being applied by the OK courts--and would hope the OK courts would so rule. But the language of OSQ 755 does seem to cover these cases too.

3) Eric: Been there; done that! Secular courts routinely enforce the decrees of rabbinic courts and the like. This is consistent with the Establishment Clause because the parties have voluntarily agreed to be bound by them, and so, the theory goes, if the state is enforcing the judgments of secular mediators and arbitrators, there's no favoritism for religion in also enforcing the judgments of religious courts.

egarber said...

Mike, thanks for the clarification. Something else I didn't realize that was illuminated on your blog.

C.E. Petit said...

I'd like to point out a second-order interpretive problem that OSQ 755 raises (and I say this as someone who involuntarily lived right outside of Oklahoma City for three years): The presumptive-good-faith aspect of the constitutional avoidance canon... which is also lurking underneath the Proposition 8 litigation in California.

Courts are constrained to avoid constitutional questions when there are other means of resolving the specific disputes placed before them. So far, so good. But...

When confronting a constitutional question that turns on whether a legislative act had improper animus, courts bend over backward to assume that no legislative act would ever have improper animus — even in the face of substantial direct and indirect evidence otherwise. This often results in post hoc rationalizations that no rational legislator would have held, such as the "Sharia as mere exemplar" rationale described by Professor Dorf.

Now add that we're not talking about a legislative act, but a direct-democracy popular initiative, and post hoc rationalization seems to be the only possible explanation. And yet courts will — inconsistently, illogically, and probably in dereliction of their own constitutional duty — pretends that the outrageous, arguendo-only post hoc rationalization was necessarily the guiding principle being followed by the legislature, despite ample evidence otherwise.

Admittedly, this could go too far the other direction; we don't want courts using examples of merely possible improper animus as a basis for declaring legislative acts unconstitutional. For example, consider a public health directive that requires a thirty-day quarantine for visitors from nations that, under WHO standards, appear to have certain endemic, communicable diseases. One could argue that this is merely a way to justify racial discrimination because such nations are so disproportionately in sub-Saharan Africa. If we're not careful in establishing a "how much/what kind of animus evidence is allowable" standard, we end up too far the other way... which might not have been such a bad thing regarding Jim Crow laws, but hopefully we've advanced some since then. Oops, I guess we haven't, or at least the population of Oklahoma hasn't.

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Sam Rickless said...

Hi Mike,

Great post. Great scott! This is really unbelievable.

What exactly does it mean to say that the law of another State *includes* Sharia Law? Suppose Sharia Law says that thou shalt not commit murder, and suppose that the law of State S proscribes murder. Does this mean that the law of State S *includes* Sharia Law? Are we to suppose that the inclusion of Sharia Law in the law of a State must involve the use of the name "Sharia Law" (as in, "following Sharia Law, this State proscribes murder")? And if this happens, does it follow that the courts of OK shall not uphold a law against murder? Or are we to suppose, as the next sentence states, that the inclusion of Sharia Law in the law of a State involves the use of "legal precepts" that are part of Sharia Law? But these legal precepts might be similar to, or identical to, legal precepts that are part of the Federal Constitution or OK's State Constitution. What then? Does OSQ 755 now tell OK courts to ignore these precepts? Are we to suppose that the law of a State includes Sharia Law only when the part of Sharia Law invoked is specific to Sharia Law and not a part of Federal law or the law of any State? But once the relevant principles have been adopted as part of the law of a State, OSQ 755, so construed, would make no sense. I am simply baffled. Baffled, I say.

tjchiang said...

One issue you don't discuss but I think is probably going to be rather important is whether the reference to Sharia actually singles out Islam as a religion for unfavorable treatment. Sharia is both a body of religious law and a body of civil law--since in a theocracy there is no distinction. Presumably a ballot initiative that says Oklahoma courts shall not consider the law of Saudi Arabia would not offend the establishment clause.

If the initiative can be plausibly understood as targeting a body of civil law that simply happens to have religious roots (as does most of our own common law), then the law becomes facially neutral as to religion and the question is whether it embodies invidious discriminatory intent a la Lukumi. And given that we don't have actual information on the intent of voters on the initiative, I wouldn't make the case as much of a slam dunk as you do.

Doug said...

How would this work if a court needed to deal with a foreign marriage? Based on a plain reading, the court could not consider the "legal precepts" of other nations in order to make a determination of fact that a couple was married. Thus, if I move to OK and claim I'm not married (I was married in Canada) the court would - in theory - need to accept my claim because otherwise it would need to make a determination if I entered into a legal marriage based on Canadian law (I guess it could take the word of the Canadian government but recognizing the Canadian government is a feature of international law which the court is also barred from doing). So I could get out of legal obligations of divorce (though in my case it would be my wife that could get out of the obligations).

Should international law (including recognition of foreign governments) not be allowed, people who were convicted of crimes abroad by legitimate governments might also be able to claim that these governments were not in fact recognized under international law - and the OK courts would be prohibited from considering and resolving this (which could mean no foreign convictions can be used against someone in OK).

Any other areas of absurdity that might well now be the law of OK? Can we say unintended consequences?

In terms of legislatures telling courts what to do this is a red herring - since it is a constitutional provision it sits above both the legislature and the courts.

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