The Oklahoma Ban on "Shari'a Law"
My head hurts. It hurts because I have been trying to make sense of the Oklahoma amendment to its constititution banning "shari'a law" [sic], and I cannot. The amendment reminds me of the anti-gay amendment passed in Colorado and successfully challenged before the Supreme Court, the one denying gays "special rights." The state's voters in their infinite wisdom had seemingly just decided that they didn't like gay people, and so they passed something that denied gay people unspecified rights without articulating their bigotries in a way that you could at least render them coherent if offensive.
Similarly, when I attempt to hear the defenders of this amendment on television, I get nothing but bigoted and incoherent babble that hardly explains anything. Hannity puts on some group of British Muslims protesting returning soldiers and calling them baby-killers, which somehow has something to do with whether or not Oklahoma courts should consider sharia. I won't even link to it, my jaw dropped watching that video, my first time watching Hannity unedited by Jon Stewart. He looks better in the Stewart edits, you can convince yourself his idiocy is the function of the clever editing of a comedy writer. In a similar vein, the defenders of this law speak in ominous but entirely unarticulated terms of the "creep" of the shari'a, though it's not clear what they mean, other than that if you reference Iraqi law or shari'a in any context, then soon we'll all be in burkas. Or something.
But we do have a law now and so let's look to it and try to make sense of it. The amendment, if you have not read it, is as follows, with relevant portions underlined:
C. The [Oklahoma state] 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, established common law, the Oklahoma Statutes and rules 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 or Sharia Law. . . . .
First of all, and I mean this seriously, if a first year law school student had presented me with this in drafting exercises I give them (basically, I tell the student what to draft as a substantive matter, and then he produces the draft), this thing gets a C, or maybe a C-. An advanced high school student could do better. The proviso, the first thing underlined (other than the Oklahoma Constitution, not intended to be underlined) is an unambiguous rejection of full faith and credit. That's the part of the United States Constitution requiring states to recognize the judgments of other states. It seems to suggest that if, say, New York, has ever used "shari'a law" to make a decision, then never again are Oklahoma courts to refer to New York law (which of course includes the judgments of New York courts). So saving Oklahoma by preemptive strike apparently means ignoring the federal constitution. Maybe they meant to say they would only ignore New York law to the extent that the NY law had incorporated shari'a on the particular matter before the Oklahoma court, a more marginal albeit real violation of full faith and credit. If so, they didn't say that very well. Like I said, C-.
But that's rather minor, the real problem comes later. The courts shall not look to "the legal precepts of other nations or cultures." And, "specifically", the "courts shall not consider international or Sharia law". Immediately, to one attempting to understand this, questions arise, as follows:
1. Are the "legal precepts" of other nations or cultures their "laws"? Any particular reason that "law" was not used?
2. What is the difference between "looking to" a legal precept, and "considering" a law. Because there are two phrases here--one says no "looking to" national and cultural "legal precepts" and the other says no "considering" international law or shari'a. Are those meant to mean the same thing?
3. What does it mean to say that Oklahoma courts can use U.S. law, which by the U.S. constitution incorporates the law of nations, but then later say they cannot use international law? Isn't that entirely contradictory? Do they mean courts can use U.S. law except when it involves international law? They never said that, they have that proviso, sort of, as it concerns shari'a from other states,,but not as it concerns international law and U.S. law. Moreover, that position (we won't use U.S. law to the extent it incorporates international law) would be equivalent to denying the power of the federal government to enact treaties applicable inside the state of Oklahoma. Not even the Confederacy believed that.
I really do not know what this means, it's so confoundingly drafted.
There is a third issue with the drafting. Proponents of the law to the extent they can be understood confuse the situation even further because they say that a big concern of theirs is the "back door" entry of shari'a through arbitration rulings by Islamic arbitration panels. I should say for purposes of completeness that such concerns are radically misplaced. This is articulated, very well, by my colleague Professor Michael Helfand in a couple of pieces. One in the L.A. Times and one on a law professor blog . He's the rising star on religious arbitration. (But then his well placed and intelligent criticisms of the Oklahoma amendment on these grounds could be because he's teaching at a well known shari'a bastion, Pepperdine, whose former Dean, Ken Starr, is a secret Muslim.)
My problem is I don't even think that this amendment covers arbitration confirmation, even if its proponents use that to drum up fears of shari'a entering through the back door. Or, perhaps better stated, it's arguable at best that arbitration is covered and certainly if this was a concern they certainly could have drafted language to deal with it in an unambiguous fashion, The reason is that courts reviewing arbitration awards do not review them on their merits, to determine if the arbitral panel applied the right law except, possibly, and only possibly, in the most extreme cases. For the most part, they review them to determine impartiality, conformity with public policy and the like, all of which would be done under the state law in question. You'd need an additional phrase like "Oklahoma state courts shall not confirm arbitral awards where the substantive law applied in such arbitration is a law other than that of the United States or the several states, nor shall Oklahoma courts stay any pending proceeding for arbitration wherein there is a substantial possibility that any part of the substantive law to be applied in such arbitration will be law other than that of the United States or of the several states"
They didn't do that, perhaps for two reasons. First, they knew they couldn't because it's in blatant disregard of United States treaty obligations, specifically the New York Convention, (which we use against other nations all the time) and would be struck down as being inconsistent with federal law in a nanosecond (though it wouldn't need to be given that arbitration presents a federal question so once there was arbitration a litigant would take it straight to federal court and ignore this ridiculous prohibition). That is to say nothing of how apoplectic the business community would be if they tried that. Can you imagine an oil company intending to invest in an Arab oil state, and that state agreeing to arbitration using let's say Saudi law (which is based heavily on shari'a), with arbitral proceedings held in France (all typical in today's world to pick fora and laws, very very common) and then all of a sudden the home state of that company says it won't respect the arbitral ruling of that panel? After America has spent so much time and effort getting developing world countries to accept arbitration, that's the result? It would be something of a business disaster, any U.S. business working abroad and complaining of excessive government regulation imposed by Democrats would be infinitely more concerned by this than by anything else, you've just announced that their contracts won't be enforced, how's that for screwing the business community? So the drafters didn't actually want to limit arbitrations on foreign law, they couldn't, all they wanted to do was stir up fears about them and pretend to address them in incoherent language. The goal, that is, was to turn people against their fellow Muslim citizens for political gain, not in fact address the very thing they brought people to fear.
That's one possibility. The other possibility is that they really are afraid of shari'a arbitration panels and are genuine in their fear mongering but that their hysteria has overwhelmed their drafting skills, and they really,actually meant to cover arbitration and did not. Either way, evil or stupid to paraphrase Jon Stewart's brilliant piece on something similar, I do not think arbitration is covered.
Once arbitration is left aside, I am perplexed as to what this does or how it will work. This is because there is no such thing as "shari'a law", only shari'a. That's not a semantic lesson drawn out of years of academic pedantry, it's that shari'a is a body of often conflicting norms and rules and does not contain the type of certainty, predictability and uniformity that characterize legal systems. Mujtahids in Najaf, for example, love discussing the finer points of shari'a and their disagreements on them, not expecting to reach resolution but revelling in the debate, because it is in these grey areas where they seek to reside. So given that there is no "shari'a law" what one is left with would be the laws of other nations, which could but do not necessarily, to a greater or lesser extent in the Muslim world, depending on place and subject matter, rely on elements of shari'a. That's rather distant, and to understand its effect on Oklahoma we would have to know precisely the status of foreign law and more precisely foreign law that incorporates elements of shari'a (as noted, it's rather confounding in the draft).
Suffice it to say, however, despite the confusion, there are rather serious problems. My friend Abed Awad has written an eloquent piece in the National Law Journal pointing out that in fact courts use foreign law all the time to handle disputes in matters of family and commerce, which is true, and he gives excellent examples. To provide my own, not long ago I was retained in Pennsylvania by a lawyer whose client wanted to remarry in Pennsylvania. But she needed to demonstrate that she was divorced in Iraq, and I was an expert retained to show that a valid divorce had indeed occurred in Iraq, using Iraqi law, but also referring to sharia which lies in the backdrop and helps inform Iraqi law. So if this were to happen in Oklahoma, what result?
Are the Oklahoma courts to pretend as if this person was never married in Iraq, because her first marriage was in Iraq, and they do not "look to" the legal precepts of other nations? Would it be the same then for people married in France? Or does looking to precepts not refer to deciding marriages have been concluded, and so this does not apply?.
And what about the divorce? May the court "look to" Iraqi legal precepts to figure out if she is divorced under Iraqi law? If that involves shari'a, does that mean you can look to the legal precepts but not "consider" the shari'a precepts underlying that law even if the law tells you to do just that? Do you use Oklahoma law and demand they do it as in Oklahoma or it's not a divorce? And if the man won't comply because he's sitting in Diyala and doesn't give a crap about your Oklahoma law, what then? Do you kidnap the Iraqi man from Diyala, bring him to Oklahoma and make him do one of them civilized divorces recognized in Oklahoma? Seriously, how do you propose to determine if this woman is divorced and capable of remarrying if you will not "look to" Iraqi "legal precepts" or "consider" "Sharia law". Or is the idea that we don't much care, it's her fault for having been married some place other than the United States of America, a place she hadn't stepped foot in until she was 24 years old? (She's 45 now, American citizen, if it matters).
As I said, break this down, take it from incoherent fears of bearded masses protesting British soldiers and hysterical ramblings about shari'a creeping up like some sort of phantom, and you immediately realize that there is no sensible way to exclude foreign law, either by way of arbitration, or by way of direct consideration, in American courts without doing serious and irreparable damage to America's economic standing and its legal decisionmaking capabilities.
It's not just bigoted, it's not just intolerant, it's not just demogoguery. It's also pretty stupid.