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Archive for November 5th, 2010

 

On Tuesday, 70% of Oklahoma voters passed an amendment called State Question 755.  This amends Article I, Section 7 of the Oklahoma Constitution, which currently reads:

§ 1. Courts in which judicial power vested.

The judicial power of this State shall be vested in Senate, sitting as a Court of Impeachment, a Supreme Court, the Court of Criminal Appeals, the Court on the Judiciary, the State Industrial Court, the Court of Bank Review, the Court of Tax Review, and such intermediate appellate courts as may be provided by statute, District Courts, and such Boards, Agencies and Commissions created by the Constitution or established by statute as exercise adjudicative authority or render decisions in individual proceedings. Provided that the Court of Criminal Appeals, the State Industrial Court, the Court of Bank Review and the Court of Tax Review and such Boards, Agencies and Commissions as have been established by statute shall continue in effect, subject to the power of the Legislature to change or abolish said Courts, Boards, Agencies, or Commissions. Municipal Courts in cities or incorporated towns shall continue in effect and shall be subject to creation, abolition or alteration by the Legislature by general laws, but shall be limited in jurisdiction to criminal and traffic proceedings arising out of infractions of the provisions of ordinances of cities and towns or of duly adopted regulations authorized by such ordinances.

SQ 755 adds the following language to the Section:

C.   The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.  The courts shall not look into the legal precepts of other nations and cultures.  Specifically, the courts shall not consider international law or Sharia Law.  The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Of course, it didn’t take long for the usual suspects to decide that this was a problem.

Salon has reported that the three main prongs of CAIR’s attack are as follows:

The Establishment Clause

The First Amendment directs all government bodies to “make no law respecting the establishment of religion.” This measure violates that basic principle of American law and governance by specifically targeting one faith and one religious community.

Separation of Powers

Our federal system and our state system is in part governed by the concept of separation of powers. One branch of government cannot restrict what another branch of government can consider in terms of doing its job — in this case, deciding cases.

Supremacy Clause

International law refers to the conduct of the relationships between sovereign nations. … International law is, according to the Supremacy Clause of the U.S. Constitution, the law of the United States of America.

 And:

How will this measure negatively impact Oklahomans of all faiths?

It will prevent Oklahoma courts from implementing international agreements, honoring international arbitrations, honoring major international human rights treaties, honoring marriages and divorces from other countries, and will cost jobs by sending the message that contracts between Oklahoma companies and international partners will not be enforceable. Oklahoma could become the only state in the nation incapable of enforcing international business law.

Let’s take each of these in order, shall we?

 The Establishment Clause:

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…” -Amendment I, United States Constitution

While someone looking at the plain language of the clause might say “The state of Oklahoma is not Congress”, the Fourteenth Amendment, through continued application by the United States Supreme Court, gradually brought the Bill of Rights to apply to actions by the various states.  That said, the question then becomes “Does this amendment to the Oklahoma Constitution establish a religion?”  Clearly, it does not.  The remaining question is “Does it interfere with the free exercise thereof?”  That answer is “no”.

While litigant Muneer Awad claims: 

Awad said in the suit that in his will he directs that his possessions be divided “in accordance with the guidance contained in the prophetic teachings” of Islam.

After the law is enacted, “no state court in Oklahoma will incorporate in the will the documents to which [Awad] referred. This is because those documents are ‘Shariah law.’ To incorporate into a will verses from a compendium of the teachings of Mohammed would surely require a judge to ‘consider … Shariah law’ which will soon be forbidden,” he said.

“The apprehension of this uncertainty is an injury itself,” he said.

he ignores the fact that making a will is not an inherently religious exercise, and therefore even if making a will with directives subject to such clauses is an act of faith for him, as he seems to be claiming, it coincides with a non-religious act that is subject to state law.   It is also a facetious claim for an attorney to make, as he can remove all uncertainty by listing the directives, rather than incorporating them by reference to a religious tome.  If he were to do so, even with a reference to the Koran, as long as all the other formalities of the execution of it were in accordance with state law, and none of its directives violated state law, the court could enforce the result without having to resort to reference to the Koran.  There is also the fact that no person has a right to go to the courts seeking to have them enforce the petitioner’s own religious laws, especially when they intersect with people who do not share their faith.   (And as a practical matter, if the will was otherwise lawfully executed and gave his executor/personal representative non-intervention powers, the courts would not oversee how his last wishes were given effect anyway, and if his estate was insolvent, which would require court intervention, there would be nothing to do but settle with his creditors out of what existed of his estate anyway, a process dictated by state law. )

Every story I read indicates that the concern underlying this arose from the trend of other western nations allowing Sharia Law to be enforced by Sharia Courts within their borders, and a recent New Jersey case in which a woman sued her husband for repeatedly raping her, and the trial court found him innocent on the basis of his belief that he was fulfilling his obligation as a husband under Sharia Law.  The ruling was overturned by an appellate court, but the fact that a system of law other than one duly passed by the state was not only considered, but determined to be a basis for bypassing state law should send chills down the back of anyone who believes in equal justice under the law.

Separation of Powers

This is also a poor argument, the gist of it being that one branch of government cannot limit what another can consider in the execution of its duties.

The weakness in this assertion is that the Oklahoma legislature, much like the Federal Congress, can determine what the courts will have jurisdiction over, and the amendment, at its core, removes Sharia Law and International Law from the jurisdiction of the state courts of Oklahoma.  

The actual doctrine itself is not a separate provision of the Constitution, but it is an implied one under a system of federalism.   As the SCOTUS has sometimes based rulings on the doctrine, but has at the same time allowed the erosion of actual federalism by permitting the expansion of the power of the federal government, I can see the Court perhaps ruling that the amendment does violate the separation of powers doctrine, but at the same time, I find it more likely that they will decline any attempt to dictate to an individual state how it determines jurisdictional limits for its own judiciary branch.

Supremacy Clause

“2.  This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United states, shall be the supreme Law of the Land; and the Judges in every State to shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” – Article VI, Section 2, United States Constitution.

Does the amendment violate the Supremacy Clause?  In order to determine the answer, one must first determine what the state meant when it used the term “International Law”.

The language on the ballot defines the state’s use of the term:

“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.”

Neither the amendment itself or the section of the Constitution that it amends contain any definition of the term.

As an attorney, I can see two methods which might be used to attack this amendment.  The first is couched in the admission that I have not read the Oklahoma Constitution from start to finish, and therefore, I cannot say if there is a definition section.  In the absence of one, I might argue with a straight face that it was nice of the state to define it on the ballot, but the failure to do it in the body of the document amended means that there is no precise and objective definition of “international law” for the courts to be able to recognize as inapplicable in matters before them.

The second method is that if I accept that treaties are international law, rather than agreements between nations that carry the force of law when properly executed (and ratified, when necessary), then this amendment is facially invalid.   However, a court might read the amendment through the lens of  “The courts shall not look into the legal precepts of other nations and cultures.”, and rule that the term “International Law” is defined by this clause, leaving the issue of treaties unmolested by this state action, and therefore the law could be ruled Constitutional.  

Given what I read in the various articles, and in the state’s own documents, it seems to me that the latter would be consistent with what appears to be the concern they are addressing, that being the increasing propensity of some Justices on the SCOTUS and Judges on lower federal courts to look to and consider foreign law when deciding matters in purely domestic cases.  I think it is a legitimate concern, and I think that any legislature concerned for the integrity of its own laws is perfectly justified to act in a pre-emptive manner with regard to both these issues.

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