As most of you are probably aware, elections were held across the United States last week. Many states also included a number of referendums and ballot questions. Oklahoma was no different. However, what was different in Oklahoma was the type of question on the ballot. On November 2, 2010 the Oklahoma ballot included the following question:
This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law. International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.
Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.
Shall the proposal be approved?
The proposal was approved with just over 70% of voters in favor. What this did was approve an amendment to the Constitution of the State of Oklahoma forbidding one specific religion’s tenant from being used or ascribed any validity in the State courts.
The actual language that would be added to the constitution forbids courts from (1) applying the law of other states, even when otherwise appropriate, if that law “include[s] Sharia Law,” and (2) “consider[ing] Sharia Law” in their own decisions. No other religious tradition is mentioned.
This amendment was a ‘knee jerk’ reaction to a New Jersey case. In that case a Muslim woman went to a family court to ask for a restraining order against her husband claiming he had raped her repeatedly. The judge ruled against her, saying that her husband was abiding by his Muslim beliefs regarding spousal duties. (An appellate court overruled this decision.)
This decision caused a nationwide stir.
In Oklahoma, Senator Anthony Sykes, Representative Lewis Moore and Representative Rex Duncan co-authored this amendment and then went about drumming up support. Representative Duncan, the main author of the Sharia Ban, announced that “America was founded on Judeo-Christian principles” and the purpose of the Ban was to ensure that Oklahoma’s courts are not used to “undermine those founding principles.” He characterized the conflict between America’s Judeo-Christian principles and the Islamic traditions as a “cultural war, a social war, a war for the survival of our country.” The purpose of the Ban was to effect a “preemptive strike” against the “growing threat” of Sharia Law.
Senator Anthony Sykes told CNN: “The fact that Sharia law was even considered anywhere in the United States is enough for me [to sign on]. … It should scare anyone that any judge in America would consider using that as precedent.”
The United States has seen this same ‘knee jerk’ reaction to other issues: whether marriage should be defined as being between a man and a woman, and the Arizona immigration law. On a larger scale, Prohibition.
So, what is wrong with this?
If we skip for a moment the potential First Amendment issue that directs all government bodies to “make no law respecting the establishment of religion,” and focus only on criminal law, there are a couple of issues that come to mind:
1. Spousal Privilege
In many criminal proceedings, spouses cannot be forced to testify against one another. (A notable exception being cases of child abuse.) If persons were married under Sharia Law, would spousal privilege apply to them? Arguably it would not.
2. Hate Crime
If the underlying crime was perpetrated on a person because he was practicing his religion which included the reading of the Koran and the teaching of Mohammed, is the court allowed to consider this a hate crime?
3. Aggravating/Mitigating Circumstances
Once a person is found guilty of a crime, they must be sentenced. Sentencing allows a judge (and a jury in capital cases) to consider a wide variety of facts and circumstances regarding the individual outside of the evidence that came in at trial. This could be very important if the victim in a case was a strict follower of Sharia Law and the defendant’s actions were more of an affront to him than they may have been to someone else. Or vice versa, that the defendant is a strict follower of Sharia Law and this, in part explained, while does not excuse, his actions. Arguably neither scenario may be considered by the court.
4. Jail Accommodations
Within reason, a person who is incarcerated retains his freedom of religion. This may mean to some people that they have dietary restrictions. To others it may mean that you are required to pray at a certain time of day. Does this new amendment allow state prisons to ignore the prescriptions of the First and the Eighth amendments and forbid the reasonable practice of this person’s religion?
The amendment is already being challenged in the United States District Court for the Western District of Oklahoma, Awad v. Ziriax, et. al. Until this, and inevitably additional cases yet to be filed, make it through the court system the enforcement of this new amendment is unknown. It is unclear how this will play out in the criminal courts of Oklahoma and could lead to some interesting cases.
One thing is certain: As a society we should be careful about making knee jerk law. It would be beneficial to us to look at what the long term ramifications of a change in the law be before trying to implement it.
