On Tuesday, the Tenth Circuit Court of Appeals confirmed the likely unconstitutionality (PDF) of a proposed amendment to the Oklahoma constitution. The proposed amendment, called — I kid you not — the “Save Our State” Amendment, commands that courts “shall not look to the precepts of other nations or cultures” and would have prohibited judges from considering both “international law or Sharia Law” and the laws of other states that “include Sharia Law.”
This law would have been weird enough without the anti-Islamic sentiment because I don’t see a problem with allowing judges to consider the laws of other countries or cultures. Judges cannot treat religious or foreign laws as binding precedent, so where is the harm in judges carefully considering the wisdom (or lack thereof) behind laws of other countries and cultures when there’s not applicable U.S. law? Still, if the legislature and people of Oklahoma want to prohibit this, that’s their business (for instance, legislatures can enact laws dictating how the courts can interpret statutes).
But when the voters accepted a proposed amendment that singles out Islamic law, they got carried away. In a case called Larson v. Valente, the Supreme Court held that when a law discriminates among religions (as compared to a law that discriminates between religion and non-religion), the law is constitutional only if it is narrowly tailored to further an important government interest. The proposed Oklahoma amendment pretty clearly points a finger at Islamic law in particular, no matter how much the state tries to argue Sharia law is named only as “an example.” Furthermore, the state offers very little in the way of a compelling government interest, remarking only that the state has an interest in dictating how its courts are run.
A final note to those of you who worry this means courts might be able to incorporate religious law into their decisions: they can’t. As I explained above, religious law is not acceptable precedent, and only really becomes an issue when you have people like the plaintiff in this case, a Muslim man who included in his will a request that a probate judge look to Islamic precepts if his wishes weren’t clear. And even then, if the Islamic precepts violated United States legal precepts, the U.S. law would trump. So no need to fret.