Oklahoma vs. the World (and Muslims… and the Constitution)

by Courtroom Mama on November 3, 2010

I try not to hold it against states when their citizens collectively do things that I disagree with. It’s pretty easy for NPR-listener types like me to get very righteous about our political beliefs and say unattractive stuff about the “heartland” or the “Bible Belt” or “anywhere that’s not Sweden.”

But sometimes I just have to gape in shock. The current culprit is Oklahoma. Cue musical theater reference: apparently, the horseshit is also piled as high as an elephant’s eye? My good buddy ANauralAdvocate beat me to the Oklahoma! lyric-referencing exposé with her coverage of the forced ultrasound legislation over at the Unnecesarean earlier this year.

This time, Oklahoma voters have approved a measure that would prohibit judges from considering international and Sharia law in making their decisions. This is plumb stupid — the best thing written about it was the Tulsa World’s non-endorsement: “The proposal is bigoted and seeks to solve a nonexistent problem. It should be rejected.”

Unfortunately Oklahomans disagreed. This is problematic on two independently sufficient grounds.

First, as the World points out, there is no “problem” of Sharia law in Oklahoma. And even if we were experiencing some surge in Sharia law, this is nothing new. Both Judaism and Catholicism have their own sets of laws, and somehow state courts have managed to balance the equities without being “barraged” by outsiders. This is blatantly calculated to bring out the crazies. It’s a wedge, just like gay marriage. Just like abortion.

Second, it’s freaking unconstitutional. The provision amends the state constitution to prohibit consideration of international law. Article 6 of the Constitution, however, begs to differ. To wit:

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 shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

(translation: the Constitution, federal law, and treaties are the Supreme Law of the Land, and all judges must follow them, no matter what the state constitution states)

As though the blatant Article 6 problem weren’t enough, there’s very likely a First Amendment issue (although I am not entirely sure how this gets framed because I’m just not a First Amendment scholar), a 14th Amendment issue (laws that discriminate must be at least rationally related to a legitimate government purpose that isn’t pure animus against a class of people), and a separation of powers problem (voters deciding what judges can consider? are you kidding me?)

Basically, this provision is crap. It’s a puff of smoke. There is no way that this will stand. But even so, the legislators that sponsored it get to pretend they have some sort of mandate. I am trying not to be cynical, but my hunch is that international law and Sharia law were bundled together in an attempt to conflate the two in people’s minds, when the truth is that international law is just a thorn in the side of the far right agenda. It has has (possibly) played a role in reversing a couple of death row convictions in the state, and is used to support the proposition that even addicts, convicts, and illegal immigrants need to be treated with dignity.

I am certain that any number of groups will be challenging this in the months to come. I’ll definitely cover any challenges as they unfold, if only because I’m curious to see how in the world Oklahoma plans to defend the measure.

(h/t @Kiki_Dawn for the link to the measure)