Stupid is as Stupid Does

[jennem.livejournal.com]

Oklahoma recently passed a constitutional amendment that prohibits courts in that jurisdiction from relying on foreign law.

Specifically, the measure amended Article 7, Section 1 of the Oklahoma Constitution to say:

“The Courts . . . when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant 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 to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law.

Setting aside the constitutionality of such a measure, is it smart?

Consider the scope of the ban. Judges aren't just prohibited from considering international (or Sharia) law when considering the constitutionality of a law. They're prohibited from considering foreign (or Sharia) law, period.

Foreign law comes up all the time in the state and federal court system. Hell, state and federal courts often interpret and apply foreign law when conflicts of law and choice of law principles point towards the application of such laws.

Got a contract that stipulates that the laws of the United Kingdom apply? Sorry. Not in Oklahoma. The courts are now forbidden from interpreting or applying the laws of the United Kingdom to your contract. What about a contract that stipulates a foreign forum for all legal disputes? Sorry. The provision prohibiting state courts from addressing the legal precepts of other nations or cultures potentially precludes courts from enforcing such provisions. Enforceability of foreign judgments, enforceability of arbitration awards, the doctrine of forum non conveniens, principles of personal jurisdictional. The amendment impacts all of these in ways that could negatively affect Oklahomans and their ability to obtain legal relief within the borders of their own state.

The amendment created a host of legal problems to avoid the boogeyman. What the hell were you thinking, Oklahoma?

Comments

[chessdev.livejournal.com]

I bet they thought they were "taking a stand" on an issue...

[kinvore.livejournal.com]

Some legal experts say this can result in courts not being able to consider the bible, either. So long, Ten Commandments!

That would be the ultimate karma.

[rasilio.livejournal.com]

Courts were already effectively banned from considering the Bible by the 1st Amendment.

[devil-ad-vocate.livejournal.com]

It plays well in Broken Arrow and Guthrie; too bad it also disses English Common Law. 'Course, a lot of uberconservatives believe precedent - two hundred years worth - should be thrown out anyway.

[badlydrawnjeff.livejournal.com]

Setting aside the constitutionality of such a measure, is it smart?

Smart in theory? Absolutely. Smart in execution? Absolutely not.

Foreign law comes up all the time in the state and federal court system. Hell, state and federal courts often interpret and apply foreign law when conflicts of law and choice of law principles point towards the application of such laws.

The issue is that there are times that it's appropriate, and times that it is not. Sharia Law? Inappropriate. Using foreign law to help decide whether our Constitution is on the right side of an issue as Anthony Kennedy famously did a few years back? Inappropriate. Applying foreign law to a situation that involves foreign law? Sure. I don't think even the crafters of this amendment quite intended that, but this seems to have been a rush job.

The amendment created a host of legal problems to avoid the boogeyman. What the hell were you thinking, Oklahoma?

They were thinking, just not completely. This will create more problems than anticipated early on, but I also think that adjustments will come about faster than we think.

[fizzyland.livejournal.com]

I'm sure Oklahoma was under imminent threat to become an Iranian colony, right?

[mijan.livejournal.com]

"What the hell were you thinking, Oklahoma?"

Your mistake is in assuming that they're capable of thinking.

[mylaptopisevil.livejournal.com]

Sharia Law? Inappropriate.

Due to it being religious or due to it being Sharia?

[underlankers.livejournal.com]

I wonder if these people realized the risk of doing this in a state with a lot of Native Americans, who have a claim to *really* have native law codes and where the *US* legal system is that of a foreign colonial power? Of course not, this is the home state of the Okies. /snerk.

[langostino.livejournal.com]

Using foreign law to help decide whether our Constitution is on the right side of an issue as Anthony Kennedy famously did a few years back? Inappropriate.

. . . that entirely depends upon what one means by "using. . . to help decide". Justices and judges are, I hope, widely read and conversant with a range of diverse ideas from philosophy, literature, religion, history, and yes, other nations' laws. Clearly one can't build a firewall in the judge's head. SCOTUS opinions are peppered with references to all sorts of things that aren't binding precedent--historical texts, Blackstone, the Federalist Papers, etc. Even the Founding justices did this.

If you mean that foreign law ought not be precedential, then sure. But Kennedy's opinion isn't even close to that, nor is any other opinion of which I'm aware. And that's the crux of the matter--this is a complete bogeyman.

And the connection to sharia is just demagogic; even you should be able to recognise that. Whatever Anthony Kennedy or other "internationalist" judges are, they aren't proponents of whatever the proponents of this measure imagine sharia to be. If I were an Oklahoman who thought that the application of foreign law in American courts were a problem, I would have voted against this measure on that basis alone.

[udoswald.livejournal.com]

It is Oklahoma, I think your first mistake was assuming they were thinking at all.

Interesting link

[verytwistedmind.livejournal.com]

"My constitutional rights are being violated through the condemnation of my faith,"

-Muneer Awad

Doesn't Sharia Law violate the seperation of church and state?

[rasilio.livejournal.com]

This is not an issue because you are conflating the physical territory on which Oklahoma resides with the metaphysical construct of the state.

The natives may have occupied the territory before the state came into existence but that does not make them part of the state.

Re: Interesting link

[rasilio.livejournal.com]

Only if it is recognized and enforced by the state.

Sharia is perfectly compatible with the Constitution as long as adherence to it remains voluntary and only enforced by the church and that none of it's provisions violate any other law.

Sharia vs. international law

[sophia-sadek.livejournal.com]

The way you modified the text implies that international law is Sharia law. The "or" works two different ways. Sharia law is not recognized by international tribunals.

[underlankers.livejournal.com]

Except that by the principle of the Oklahoma law, only laws from the North American continent are permissible. By its most reductionist this is the best thing to happen to Native Americans in Oklahoma since Andrew Jackson expelled all the Eastern Tribes there.

[kinvore.livejournal.com]

stop raining on my parade with your pesky facts, captain buzzkill

[badlydrawnjeff.livejournal.com]

. . . that entirely depends upon what one means by "using. . . to help decide". Justices and judges are, I hope, widely read and conversant with a range of diverse ideas from philosophy, literature, religion, history, and yes, other nations' laws. Clearly one can't build a firewall in the judge's head. SCOTUS opinions are peppered with references to all sorts of things that aren't binding precedent--historical texts, Blackstone, the Federalist Papers, etc. Even the Founding justices did this.

At the end of the day, however, the US Constitution is the US Constitution. Is there merit in, say, looking at the Magna Carta for some idea of inspiration or whatever? That's a debate worth having. Trying to figure out if something is Constitutional based on current international law that doesn't impact the case at hand otherwise? Wildly inappropriate.

If you mean that foreign law ought not be precedential, then sure. But Kennedy's opinion isn't even close to that, nor is any other opinion of which I'm aware. And that's the crux of the matter--this is a complete bogeyman.

And the connection to sharia is just demagogic; even you should be able to recognise that.

Is it? The precedent for it exists now. Kennedy has used foreign law (http://www.usatoday.com/news/washington/2003-07-07-foreign-usat_x.htm), Sharia has been deemed acceptable by domestic courts (http://volokh.com/2010/07/23/cultural-defense-accepted-as-to-nonconsensual-sex-in-new-jersey-trial-court-rejected-on-appeal/). Whether the fear is rare enough to be unfounded or not, these things actually happened, and this amendment is a ham-fisted reaction to it. Without knowing the specifics of the New Jersey case and their ability to use cultural indicators, Oklahoma is clearly drawing a line in the sand for their own litigation, which is within their rights.

If I were an Oklahoman who thought that the application of foreign law in American courts were a problem, I would have voted against this measure on that basis alone.

So if you saw the problem, you'd vote against this on the basis even though the amendment is designed to fix the problem? As poorly done as this amendment is, I could see myself voting in favor of it in order to force the hands of the courts and push the lawmakers to shift the pendulum back a ways instead of the current system in place.

[badlydrawnjeff.livejournal.com]

Both, truly. But I don't think you can really separate the two.

[heirtoruin.livejournal.com]

Can you separate the two?

Why must you even ask?

[mylaptopisevil.livejournal.com]

Can you separate the two?

Yes, unless someone is going to claim non-denominational laws are incapable of being offensive.

Why must you even ask?

Because I was curious.

[langostino.livejournal.com]

Regarding the New Jersey case--it was a bad ruling, yes. But it's not precedential as it was overturned. Bad decisions are made all the time. That's why we have appeals. The appeals process worked in this case.

And anyway, that case wasn't about sharia per se. The judge's ruling effectively created a religious-liberty exemption from certain laws. That's not so different from what many of the proponents of the Oklahoma amendment might favour regarding compulsory public school attendance, certain tax obligations, etc.--provided that the exemption were only allowed to Christians (and maybe Jews if they were feeling generous).

Kennedy didn't cite any foreign law as binding. He referred to it in the course of a much larger argument. If you have a problem with Kennedy's use of foreign law in that regard, do you also have a problem with the majority opinion in Bowers v. Hardwick, and the dissenting opinion of Scalia, which both cite the long history of anti-sodomy statutes, including nineteenth century British law?

[mylaptopisevil.livejournal.com]

I can personally see select portions of a religious text as guidelines worth consideration and other portions as guidelines to reject, just like I can see international non-denominational laws as just laws worth considering and other laws as ones worth rejecting.

For example, I might see country X's views on copyright protection as fair while rejecting their views on free speech. And, in turn, in the event there was ever a case where I was on jury and having to consider country X's copyright protection laws I would feel that it's reasonable to take into account. Meanwhile if I sat on a jury where country X's views on free speech had to be considered in the case, I'd proactively and openly not wish to take it into account.

Re: Interesting link

[mylaptopisevil.livejournal.com]

Doesn't Sharia Law violate the seperation of church and state?

Does a moral compass and any laws created through the Ten Commandments violate the separation of church and state?

[langostino.livejournal.com]

So if you saw the problem, you'd vote against this on the basis even though the amendment is designed to fix the problem?

Yes. Just as if I were in Weimar Germany, I'd vote against anti-inflation measures which also mentioned "Jewish finance".