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?