A federal appeals court has blocked an Oklahoma voter-approved measure barring state judges from considering Islamic and international law in their decisions.
The three-judge panel at the 10th U.S. Circuit Court of Appeals upheld an earlier injunction preventing State Question 755 from being certified until the free speech questions are resolved. The decision Tuesday allows a lawsuit brought by Islamic-American groups to move ahead to a bench trial.
A federal judge last summer had issued a temporary restraining order in favor of the Council of American-Islamic Relations (CAIR), which had sued to nullify the law completely.
The amendment would require Oklahoma courts to “rely on federal and state law when deciding cases” and “forbids courts from considering or using” either international law or Islamic religious law, known as Sharia, which the amendment defined as being based on the Quran and the teachings of the Prophet Mohammed.
In bringing suit, CAIR argued that the amendment violates the establishment and free-exercise clauses of the First Amendment’s guarantee of religious freedom. The group’s local leader, Muneer Awad, has said the amendment passed in November 2010 under a campaign of fear and misinformation about Islam.
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5 Responses
This was a foolish way to word it. They should have just wrote “federal and state law”. On the other hand, if this goes down it will also be a victory for those who are trying to introduce Talmudic law (which is really ging back to their sources but that is beyond the scope of this post).
1. The contract clause clearly gives everyone a right to make their contracts according to whatever law they wish, subject the the rules governing choice of law.
2. International law is included in the constitution and is binding upon the states.
1. They are obviusly referring to cases where unclear laws are beig interpreted. For example, when the Supreme Court outlawed the death penalty as cruel and unusualthe majority opinion cited the fact that one of the conditions for entry into the EU is abolition of all of forms of it. This is also part of the Oxford Manifesto of the Liberal International. There was a tremendous outcry in Congress and attempts at passing a law or constitutional amendment against deciding cases according to other than American law. The attempts failed but the Court took the hint (also it became more conservative with the deaths or resignations of liberals and the appointments of conservatives by President George W. Bush) and backtracked.
2. They must also take into consideration the contract law of the jurisdiction that applies. This also applies when adjudicating a case in a bet din as in commercial relations secular law has the status of minhag socherim (the custom of merchants) and is halachically binding.Thus frum attorneys will write contracts in such a way as to be binding according to both Jewish and American law – and bind the parties to adjudication in a bet din (see, for example, http://www.baishavaad.com/contract_draft_and_review.php).
3. The applicability of International Law is limited to treaties entered into by the President and ratified by the Senate. Whether these treaties can override Constitutional Law of even regular laws is a matter about which much ink and money has been spilled.
The United States was founded on “Natural law” – just read the Declaration of Independence. We cited various “Natural law” principles to support what was clearly an unlawful rebellion against the clearly lawful government.
Common law courts have ALWAYS looked to other systems for precedents if their own are lacking. It’s part of the common law process that goes back almost 1000 years.
I don’t know from sharia law, but I know a little something about Oklahoma law. In 1939, the US Supreme Court decided that an Oklahoma statute calling for “chemical castration” of recidivist criminals was unconstitutional because it was cruel and unusual. Mr. Skinner was a recidivist chicken thief (3 separate convictions), and Oklahoma wanted to give him medications that would render him sterile. The US Supreme Court prohibited the proposed punishment. Oklahoma was unhappy about the decision, but what strikes me as curious is that according to my very limited knowledge of sharia law, harsh punishments are part of the picture. So Oklahoma voters who voted for the ban on sharia law may have unknowingly been disavowing their own past endorsement of excessive punishment.