NYCBA Criticizes Oklahoma Referendum Banning International Or "Sharia" Law As Unconstitutional

Monday, January 31, 2011 - 00:00

The New York City Bar Association has criticized as unconstitutional an amendment - Question 755 - in the State of Oklahoma that, if certified, would prohibit Oklahoma courts from considering or using international law or "Sharia Law."

In a report written "out of a concern that Question 755 might be replicated in other states," the City Bar concludes that "Question 755 violates not only the Establishment and Free Exercise Clauses of the First Amendment of the federal Constitution, but also the Supremacy Clause of Article VI, the Contracts Clause of Article I and the Due Process Clause of the Fourteenth Amendment." Calling the amendment "discriminatory" and "counterproductive," the report states that it "will make conducting business and personal affairs more difficult not only for people who may choose to observe rules or principles based upon Sharia, but for all who have personal or business relationships with those people, including the more than 1.6 billion Muslims worldwide. As drafted, it will also needlessly reject the use of the law of other states by Oklahoma courts even in cases with no relation to Sharia law. The Question's prohibition against consideration of "international law" will confuse and complicate legal matters in Oklahoma for all those whose personal and business affairs relate to international affairs or matters in other countries. And in our globally connected world, many of us have foreign and international involvements we are unaware of, including the entity that owns our own business or holds our mortgage. No state should so isolate its entire population, and denigrate a segment of its population that is entitled to the full protection of U.S. and state law."

The U.S. District Court for the Western District of Oklahoma has issued a preliminary injunction barring certification of the referendum, reasoning that the plaintiff "has made a strong showing of a substantial likelihood of success on the merits of his claim asserting a violation of the Establishment Clause" of the United States Constitution.

"The court held that the Question's language singles out Sharia Law, 'conveying a message of disapproval of the plaintiff's faith,'" states the report. Beyond that, according to the report, Question 755 "would allow Oklahoma courts to use or consider the law of any other state only if the other state does not include Sharia Law." A central problem, according to the report, and as the court noted, is that "Sharia Law" to a substantial extent "lacks a legal character" and rather comprises religious traditions that "provide guidance to plaintiff and other Muslims regarding the exercise of their faith. The court therefore found that a prohibition on 'Sharia Law' has the effect of inhibiting plaintiff's religion."