Joel Siegel, ABC News, June 14, 2010
Oklahoma is poised to become the first state in the nation to ban state judges from relying on Islamic law known as Sharia when deciding cases.
The ban is a cornerstone of a “Save our State” amendment to the Oklahoma constitution that was recently approved by the Legislature.
The amendment–which also would forbid judges from using international laws as a basis for decisions–will now be put before Oklahoma’s voters in November. Approval is expected.
Oklahoma has few Muslims–only 30,000 out of a population of 3.7 million. The prospect of sharia being applied there seems remote. But a chief architect of the measure, Republican State Rep. Rex Duncan, calls the proposed ban a necessary “preemptive strike” against Islamic law coming to the state.
Sharia has gained a toehold in some western countries, notably Great Britain, where five sharia courts have been established to settle certain disputes among Muslims, with the government’s blessing.
The proposed Oklahoma amendment is aimed, in part, at “cases of first impression,” legal disputes in which there is no law or precedent to resolve the matter at hand.
In such cases, judges might look to laws or rulings in other jurisdictions for guidance. The proposed amendment would block judges in Oklahoma courts from drawing on sharia, or the laws of other nations, in such decisions.
The amendment also is a response to what some conservatives see as a pernicious trend–cases of liberal judges mostly notably Supreme Court Justice Ruth Bader Ginsberg, using foreign laws to shape their opinions in U.S. cases.
“It should not matter what France might do, what Great Britain might do, or what the Kingdom of Saudi Arabia might do,” Duncan said. “Court decisions ought to be based on federal law, or state law.”
Oklahoma Law May Not Be Constitutional
Legal experts contacted by ABC News said they did not know of one instance of a judge in the U.S. invoking sharia in rendering a decision.
Cohen added that he questions whether the proposed amendment would pass constitutional muster.
“Our federal system and our state system is in part governed by the concept of separation of powers. It’s far from clear that the Oklahoma legislature can restrict what a separate branch of government can consider in terms of doing its job–in this case, deciding cases,” he said.