Kozlowski: Sharia law ban doesn’t disenfranchise anyone

For all our eloquence against tyranny over the years, humans seem to like rules. We seek to… For all our eloquence against tyranny over the years, humans seem to like rules. We seek to understand the world as a series of rules, which is why we study natural sciences at universities. We also believe that people should behave according to a set of rules, which is why universities have theology departments and law schools. Of course, whenever humans have different ideas about what constitutes justice, they argue, bicker and sometimes go to war over whose rules are fairer. The latest disagreement hails from Oklahoma.

Oklahoma State Question 755 establishes that Oklahoma state judges are bound to use only state or federal law and shall not use foreign laws or precedents in reaching their decisions, including Sharia Law — Islamic law based on the Koran and the teachings of Mohammed. It is this last clause that has led Muneer Awad of the Council on American-Islamic Relations to sue for the overturn of this provision on First Amendment grounds. He argues that the measure stigmatizes Muslims and limits their ability to have a political impact.

The usual histrionics are on the horizon. Supporters of the measure will say activist-judge terrorists will trample our rights and kill us if the measure is overturned, whereas opponents will call the supporters racist hicks. Regardless of what you think of Sharia or international law, there are other reasons to back the initiative.

First, let us answer some of the arguments being forwarded by supporters of the lawsuit — such as the Islamic Society of Greater Oklahoma City — who said in a statement that the measure was a vote by “over 70 percent of the people … to have their Muslim neighbors’ … religious freedoms stripped and limited to the measurements of others.”

I vehemently disagree.

This is not an issue of freedom of religion. An individual has a right to follow religious laws if he so chooses. But he does not have the right to require those laws have any standing in a court under the laws of the United States. Allowing Sharia or any other form of canon law in judicial proceedings is a violation of the Establishment Clause of the First Amendment, as doing so makes religious beliefs a part of the American legal code. As Justice Clarence Thomas said in his dissenting opinion in Graham v. Florida, foreign law “factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any long-standing determination in this nation.” The worst you can say about the ballot initiative on First Amendment grounds is that it is redundant.

Whereas I understand Muneer Awad’s concerns that this measure stigmatizes Muslims and think it’s tactless to single out Sharia in a “Save Our State” amendment, the parties involved in the conflict should realize that this measure does not limit the political impact of Muslims. Muslims would still be free to petition the legislature to change the laws of the state or to run for elected office. Muslims would still be able to sue, press charges, serve on juries, vote, protest and do all the other things any average citizen can do. This measure denies them no political rights. It denies them something every one of us is already denied — the ability to infuse religion into court proceedings.

This leads directly into why this measure can be supported on the grounds of the 14th Amendment. If Sharia is applied in certain cases involving Muslim plaintiffs or defendants and not in all cases, we have just created two separate systems of law. This is completely antithetical to the 14th Amendment’s doctrine of equal protection. Furthermore, if one judge decides to cite Sharia or international law, there is no guarantee that the judge in the next courtroom will do the same. So the same trial, on the same charges, involving the same contesting parties could have two different sets of rules governing it depending on which judge is assigned the case. Remove the ability to cite international law or Sharia and you remove this potential inequality.

Finally, this proposition short-circuits a route by which judges could bend the law to their individual whims. By citing foreign law, judges would no longer be bound by our laws and our precedent. Thus, a judge could do something very close to making up laws as he goes by plucking parts out of the diverse legal codes of the world and writing precedent based on these foreign laws. All of a sudden, we find that our legislators don’t make our laws anymore. They are made instead by foreign potentates and legislatures and U.S. judges we might not elect. This is an egregious violation of the doctrine of separation of powers that delegates the making of law to our elected legislatures.

There are, of course, ways to split hairs. International law is important in international cases, such as those where the Supreme Court has original jurisdiction. But in general terms, Oklahoma State Question 755 is constitutional and a worthwhile measure to maintain.

Write Mark Kozlowski at kozthought@gmail.com.