Tuesday, August 20, 2013

Would the Oklahoma Ban on Foreign Law Survive if Challenged on its Own?--And a Digression on the Meaning of the Sharia Ban

By Mike Dorf

In yesterday's post, I discussed the severability analysis in Awad v. Ziriax.  The federal district court invalidated Oklahoma's ban on judicial application of sharia and went on to find that its further ban on judicial application of international law was non-severable, and thus had to fall along with the sharia ban. Neither the court nor the parties appear to have questioned the assumption that the international law ban, if it had been passed as a stand-alone provision, might have been unconstitutional.  Here I'll consider that possibility--and in the course of doing so, I'll also reconsider the meaning and constitutionality of the sharia ban itself.

The international law ban reads, in relevant part, as follows: "The courts shall not look to the legal precepts of other nations . . . . Specifically, the courts shall not consider international law . . . ."  Taken at face value, this provision is plainly invalid.  Why?  Because in some circumstances federal law requires state courts not only to consider, but actually to apply, international law.  Even the recalcitrant Virginia judges in the storied case of Martin v. Hunter's Lessee understood that they were obligated to apply a federal treaty in preference to state law; they merely disagreed about who had ultimate authority to construe the federal treaty.

Nor does the state court obligation to apply international law stop with treaties.  Pursuant to the Sosa decision, a foreign plaintiff may rely on some aspects of customary international law to obtain relief against tortfeasors, and under Testa v. Katt, state courts would need to be open to such suits on an equal basis with their availability to hear analogous cases arising under state law.  And international law incorporated into federal law may provide a valid defense to a state law civil or criminal action.

Accordingly, if read literally, the Oklahoma international law ban is plainly invalid.

However, it probably shouldn't be read literally.  For one thing, there is the principle of constitutional avoidance.  For another, additional language in SQ 755--the ballot initiative that adopted the ban--states that Oklahoma courts follow and apply federal law.  I think the best reading of the international law ban is that Oklahoma courts are permitted to apply international law when some other source of law--such as state law, federal law or private law in the form of a contractual choice-of-law clause--incorporates or invokes international law, but that they are forbidden from turning to international law as a source of guidance in interpreting Oklahoma law.  In other words, SQ 755 takes the view of international law that Justice Scalia took in his dissent in Roper v. Simmons and that the late Chief Justice Rehnquist (joined by Justices Scalia and Thomas) took in Atkins v. Virginia.

In a moment, I'll ask whether there's anything impermissible about doing that, but first, I want to note that if the foregoing paragraph sets forth the best reading of SQ 755's international law ban, then, because it is contained in the same statutory phrasing, SQ 755's sharia ban is probably best read in the same way.  Under that reading, SQ 755 would not bar Oklahoma courts from applying sharia when sharia is incorporated via state law (through contract law, say) or federal law, but the Oklahoma courts are barred by SQ 755 from turning to the Quran, the hadiths or the ulama to understand the meaning of some unclear provision of Oklahoma law.

Read in that way, the sharia ban was one of the most unncecessary laws ever enacted.  I searched through Oklahoma case law and--unsurprisingly--could not find a single instance of an Oklahoma court relying on sharia as a source of interpretive guidance for unclear Oklahoma law.  Indeed--and in a bit of a pleasant surprise--I found very few instances, and no recent instances, of Oklahoma courts turning to Christian holy texts as a source of interpretive guidances.  Indeed, the bulk of cases that contain any discussion of such matters are cases in which the courts consider whether it was reversible error for a prosecutor to refer to the Bible (an eye for an eye, a life for a life) in their death penalty closing arguments.  The Oklahoma courts say that such arguments are improper but not always reversible.

Still, it is not inconceivable that the Oklahoma courts might turn to Christian (or Jewish or Buddhist) holy texts as a source of interpretive guidance.  After all, Supreme Court Justices sometimes do so.  For example, in (the since-overruled) Bowers v. Hardwick, Chief Justice Burger relied on "Judeo-Christian moral and ethical standards" in support of construing the Fourteenth Amendment to fail to protect "homosexual sodomy."  In Roe v. Wade, Justice Blackmun's majority opinion repeatedly invoked Christian teachings about abortion in support of his conclusion that the Fourteenth Amendment does protect an abortion right.  And in California v. Hodari D, Justice Scalia, for the Court, quoted Proverbs ("The wicked flee when no man pursueth") in support of the proposition that flight upon seeing the police by itself might give rise to sufficient individualized suspicion to validate a seizure of the person under the Fourth Amendment (although the Court did not decide the point in that case).

One might think that all such invocations of religious authority as interpretive guidance violate the Establishment Clause.  If so, then the proper judicial response to the sharia ban is not to enjoin it but to expand it.  The constitutional problem, in this view, would be that SQ 755 does not go far enough.  However, if one thinks that it is permissible for courts to invoke religious traditions for interpretive guidance in the obviously makeweight fashion described above, then SQ 755's sharia ban would be unconstitutional religious discrimination for prohibiting Islamic sources of interpretive guidance but permitting other religious sources of guidance.

So much for my digression regarding the meaning and validity of the sharia ban.  Now let me return to the question with which I began: Is there anything independently unconstitutional about refusing to look to international law as a source of interpretive guidance for Oklahoma law?  I don't think so.  To be clear, I regard the conservative campaign against the influence of foreign and international law as both misguided and futile (as I explained in a 2005 essay).  But that doesn't mean it's unconstitutional.

Might one reach a different conclusion where, as in SQ 755, political actors instruct judges not to consider international law, rather than the judges deciding for themselves not to consider such sources of guidance?  One might think that a law instructing courts not to use their standard interpretive toolkit violates the separation of powers, but there are serious problems with this view.

I think the separation-of-powers objection is wrong on its own terms, at least with respect to statutory interpretation.  A legislature that passes a law can also pass guidelines for the courts to use in interpreting the law--at least if those guidelines are not independently objectionable (e.g., "interpret the law in whatever way favors white people"). Thus, the so-called Dictionary Act defines various terms in federal statutes, and it is not invalid even where the Dictionary Act instructs courts to apply definitions that they would reject if left unguided.

Of course, the legislature cannot tell the courts how to interpret the constitution.  E.g., a federal statute instructing the courts that the Equal Protection Clause shall be interpreted in precise accordance with the original understanding would be invalid--assuming that the courts would, if left to their own devices, turn to other sources of interpretive guidance as well as, or instead of, the original understanding.  However, this principle is irrelevant in the present context because SQ 755 is itself a constitutional amendment.  Thus, even if the Oklahoma legislature cannot instruct the Oklahoma courts how to interpret the Oklahoma constitution, a provision of that very constitution can.  This disposes of any separation of powers objection.

Finally, a federal court cannot enjoin a state official from enforcing SQ 755's international law ban on the ground that the ban violates Oklahoma law because, under the Pennhurst doctrine, doing so would violate the state's sovereign immunity.  So even if SQ 755's international law ban were a violation of the Oklahoma constitution's separation of powers, a federal court could not enjoin it on that basis.

So there you have it: Both the district court and the parties appear to have been correct in their assumption that the international law ban--properly understood--is not independently objectionable. Aren't you glad you asked?


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