Like everyone else, you probably assume that US legal matters are settled by US laws. From criminal trials to making a will, it only makes sense for US judges and lawyers turn to US law to solve a legal problem, right?
Generally, that's how it works - with a few rare exceptions. But Oklahomans wanted to make sure it worked that way in their state.
In 2010, Oklahomans approved an amendment to the state's constitution barring their courts from citing or using Sharia - Islamic law - or any international law, when deciding US legal matters. In response to a lawsuit filed by Oklahoma resident, Muneer Awad, a federal court barred the state from enforcing the law.
The law can't be enforced until the courts settle the entire lawsuit - state officials may appeal. Other appeals may be inevitable, possibly all the way to the US Supreme Court. It may be late 2011 before we know if the law is valid.
Why the Ban?
There are haven't been any reports about Oklahoma judges using Sharia. Rather, the ban was in response to a New Jersey case where a woman wanted a restraining order against her husband. She claimed he'd raped her numerous times.
A state court judge refused her request, ruling that her husband was following his Muslim beliefs and hadn't committed a crime.
On one side is the First Amendment. As Awad claimed, the law mentions only Sharia by name, indicating a strictly anti-Muslim purpose.
The law also affects his legal rights. His will, for example, is written with Sharia in mind. So, if the law stands, is his will invalid?
On the other hand, Oklahoma lawmakers - and the 70 percent of the state's residents who voted for it - claim the law isn't anti-Muslim. It's meant only to make sure judges don't go outside US law to find absurd results like the case in New Jersey.
A New Jersey appeals court disagreed with the original judge. It ruled the husband committed a crime, regardless of his religious beliefs.
If the law stands, it may have far-reaching, unintended and unexpected effects. For instance, if it stands, it could then be argued courts and judges could no longer:
- Refer to the Ten Commandments (they're foreign laws) when making legal decisions, which is done quite often
- Legally recognize decisions by religious bodies, such as Orthodox Jewish Beth Dins that settle family law disputes, such as divorce
On the other hand, if the law ultimately is struck down, what does it mean for the rights of voters like you who choose to change their laws? Do, or should, the courts have the power to overrule the will of the people? There are no answers.
It's unlikely the law will stand. The Supreme Court ruled long ago a city law banning the practice of the Santeria religion violated the First Amendment. On top of that, the law almost certainly discriminates against people on the basis of their religion - and possibly national origin and ethnicity - in violation of US civil rights laws.
Is such a law really needed, anyway? Cooler heads prevailed in New Jersey and religion or faith-based laws couldn't be used as a shield against criminal prosecution.
Questions for Your Attorney
- Should I have my will redrafted if it's based on Sharia?
- Would it be legal to pass a constitutional amendment stating that US judges must apply only US law in US legal disputes or matters?
- How can Awad - or anyone else - file a lawsuit against a law before the law is even enforced against him?