WSJ/ By JESS BRAVIN
A Muslim activist in Oklahoma City filed a lawsuit Thursday challenging a voter-approved measure that bars Oklahoma state judges from considering Shariah, the Islamic religious code based on the Koran and the Prophet Mohammed’s teachings, in formulating rulings.
State Question 755, which passed Tuesday with 70% of the vote, declares “the legal precepts of other nations or cultures” off-limits to Oklahoma courts. “Specifically, the courts shall not consider international law or Sharia Law,” it reads.
The suit, filed by Muneer Awad, director of the state chapter of the Council on American-Islamic Relations, asks the federal district court to block officials from certifying the referendum.
Mr. Awad says the measure violates the First Amendment, which protects “free exercise” of religion and prohibits official “establishment of religion.” A hearing was set for Monday.
The complaint alleges Oklahoma has singled out Islam for “profound stigma,” consigning Muslims such as Mr. Awad “to an ineffectual position within the political community.”
Oklahoma’s Legislature voted overwhelmingly to place the Save Our State Amendment before voters. A co-sponsor, state Sen. Anthony Sykes, denied it sought to stigmatize Muslims. “We’re not trying to send any sort of message here,” said Mr. Sykes, a Republican.
Rather, he said, Oklahomans wanted to insulate their judiciary from un-American influences. While no Oklahoma court ever has cited Shariah law, “we are on a slippery slope,” he said.
Democratic Sen. Richard Lerblance, one of two state senators to vote against the measure, called it “a scare tactic.”
“They call it ‘Save Our State.’ I don’t know what we’re saving it from,” he said. “We have yet to have any court do anything based on Shariah law.”
Several states have considered rules that restrict judges from making decisions that take into account foreign or international legal materials, said William Raftery, a research analyst with the National Center for State Courts in Williamsburg, Va. Only Oklahoma’s measure singles out a particular religious tradition, he said, though a proposal in Arizona lists Shariah along with canon law, Jewish law and karma, a conception of fate in Hindu and Buddhist traditions.
Mr. Sykes and other conservatives who perceive a threat from Islamic law cite a 2009 case in which a New Jersey judge declined to issue a restraining order against a Moroccan man who forced sex on his unwilling wife.
Among other reasons, the judge said the husband’s belief that his wife must submit to sex “was consistent with his [religious] practices.” An appeals court reversed the judge and ordered that a restraining order be issued, citing a Supreme Court decision rejecting a Mormon’s claim that his faith exempted him from an anti-bigamy statute.
“To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” Chief Justice Morrison Waite wrote.
Decisions of the U.S. Supreme Court are binding on all state and federal courts, and no justice of the Supreme Court ever has asserted he or she is bound by any authority other than the U.S. Constitution.
However, beginning in 1791, when Chief Justice John Jay adopted English rules for the new U.S. Supreme Court, American judges occasionally have examined how foreign courts address similar legal problems.
For instance, in a 1997 decision concerning Washington state’s ban on assisted suicide, Chief Justice William Rehnquist cited court decisions from Australia, Britain, Canada, Colombia and New Zealand.
Mr. Sykes said he wanted to protect the Oklahoma judiciary from the influence of “Justices Ruth Bader Ginsburg and Elena Kagan and, I’m sure, Sonia Sotomayor, given her political leanings,” who he believed were inclined to rely on international law.
Justice Ginsburg responded to similar criticism in a July speech to the International Academy of Comparative Law, at American University. She said foreign opinions “are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions.”
She cited Justice Robert Jackson’s 1952 concurrence that the president lacked authority to seize steel mills during wartime. Justice Jackson “pointed to features of the Weimar Constitution in Germany that allowed Adolf Hitler to assume dictatorial powers. Even in wartime, Jackson concluded, the U.S. president could not seize private property.”
University of Oklahoma law professor Joseph Thai said that earlier this year, the state legislature commissioned “a monument to the laws of another religion”–the Ten Commandments–for the state Capitol.
“Oklahoma’s apparent approval of the legal traditions of a majority religion and attempt to suppress the legal traditions of a minority religion” may conflict with the Constitution’s requirement that government treat all religions equally, Mr. Thai said.
He said the new state law may forbid Oklahoma judges from citing the Ten Commandments, because they are “international in origin.”
Corrections & Amplifications
Several states have considered rules that restrict judges from making decisions that take into account foreign or international legal materials, said William Raftery. An earlier version of this story said several states have adopted the rules and misspelled Mr. Raftery’s name as Raferty.