Appeals Court Upholds Injunction on Anti-Sharia Law

The 10th Circuit Court of Appeals has upheld an injunction by a federal district court preventing the implementation of Oklahoma’s anti-Sharia law amendment while it is being challenged in court. The amendment to the Oklahoma state constitution was approved by voters by a wide margin in 2010, but a lawsuit was immediately filed and the court issued an injunction against the state certifying the result until the full case could be heard and a ruling issued. The state then appealed that preliminary injunction, which has now been upheld. You can read the full ruling here.

This is hardly surprising. The appeals court only really examines whether the lower court judge abused their discretion in issuing the injunction, they don’t rule on the merits of the case (neither did the district judge, for that matter). This is what the ballot language for the amendment said:

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 teachings of Mohammed.

The main issue was standing, with the state arguing that the plaintiff didn’t have standing to bring a suit. But the court said that the state had failed to distinguish between the kinds of standing that are allowed in different kinds of suits, and that the plaintiff had standing on the Establishment Clause challenge and that is all that is necessary to uphold the injunction.

But this case is still pending trial in the district court and that will be very interesting. There are lots of cases where the court must consider international law, as in a case that involves a treaty obligation, or even Islamic law, such as where two parties might sign a contract agreeing to be bound by Islamic law in making some transaction or business relationship.

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  • Yoritomo

    Going by the list of supposed “creeping Sharia” court cases published a while ago, the relevant cases will mostly be child custody cases and the like involving foreign nationals, where courts in the US must consider foreign laws. I cannot begin to imagine what those who want to ban “Sharia law” expect the courts should do in those cases – flout the treaty obligations the US has entered into? Wouldn’t conversely these treaties technically make the foreign child custody laws that must be considered part of US law (and superior to all state law at that)?

  • eric

    I cannot begin to imagine what those who want to ban “Sharia law” expect the courts should do in those cases – flout the treaty obligations the US has entered into?

    I can. Child custody seems to me exactly the sort of emotional case where the bigots would object to a US court recognizing any right of a foreign, non-christian parent.

    Just think about it. White Oklahama baptist parent fights to keep custody of kid when the other parent is a swarthy mooslim who wants to take said kid to Pakistan or SA. Judge rules in this particular case, kid should go with foreign parent…and cites foreign treaty obligations or international law as part of ruling. Such a case seems tailor-made for the creeping shariaistas to get incensed about.

  • danielrudolph

    The best part was where they tried to claim that the fact the voters voted for it constituted a compelling state interest.

  • matty1

    Child custody is one area where I would want to see the best interests of the child put before the letter of the law (regardless of the laws origin).

    Consider this example. Under Saudi law legal custody of children over nine for boys or seven for girls automatically lies with the father and on his death with his closest male relative.

    I would not want any court ruling that if the father is a Saudi citizen this should be applied without reference to the childs interests and the circumstances of the custody case.

    Despite these concerns I agree that the ban as reported sounds like unworkable nonsense.

  • danielrudolph

    US law already says that foreign law is only enforceable in these situations if it doesn’t go against US public policy. For instance, a US court didn’t recognize an Indian divorce because the woman had had no due process. She was therefore allowed to file for divorce in the US. That sort of thing isn’t a real problem.

  • matty1

    US law already says that foreign law is only enforceable in these situations if it doesn’t go against US public policy

    Good that’s as I hoped it would be and confirmation that no extra laws are needed.

    Incidentaly I recently read a piece on the UK situation. Essentialy we have special family courts and they alone can rule on such cases. A couple could ask the court to enforce their private agreement but it would only happen if the agreement was consistent with public policy and the court was satisfied the two sides had parity of bargaining power when they reached the agreement. Whether the private agreement mentions Sharia or any other legal system would be legally irrelevant.

  • eric

    matty1 – IANAL but I think the US situation is similar. Two individuals, or an individual and a corporation, or whatever, can make an agreement or private contract using whatever religious or secular rules they want. Sharia, Jewish law, whatever. The courts will generally enforce such contracts as long as they don’t break any US laws, and subject to similar caveats about bargaining power etc. What motivates you to come up with your agreement is, as you say, legally irrelevant, as long as the contract itself is legal.

  • matty1

    Well, IAalsoverymuchNAL but I believe there is a distinction between family cases where only the content of the agreement is considered and some kinds of business contract where it is OK to say something like “arbitration must follow this school of Sharia”. In the business case once it was determined the contract including the arbitration clause was valid the Judge could look at whether the specified rules were used. In a family court there would be no equivalent, an agreement would have to be of the form “I will do X” not “I will follow the decision of third party Y”

  • exdrone

    Yoritomo @1:

    I cannot begin to imagine what those who want to ban “Sharia law” expect the courts should do in those cases

    Hold their hands over their ears and shout, “Nah, nah, nah. Can’t hear you. Can’t hear you.”