March 27, 2017

Oklahoma Question 755 – a Rebuttal

This entry is part 1 of 1 in the series Oklahoma State Question 755
  • Oklahoma Question 755 – a Rebuttal

The voters of Oklahoma have spoken, and with a resounding 70% majority have answered “yes” to Question 755. This Question seeks a constitutional amendment requiring Oklahoma courts to only look to “the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma statutes and regulations 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 precepts of other nations or 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” [1].

Some Troubling Issues Raised by Question 755

To frame the context of this discussion, the doctrine of separation of Church and State is a long-enshrined basis of US law. This article is not intended in the least to argue that Sharia Law (nor any other religious law) should become part of the law of the land. It should not, because incorporating religious law into civil and/or criminal law would be unconstitutional. Thus, while e.g. in England Sharia courts have been given some legal standing [2], such would be unconstitutional anywhere in the United States without the need for Question 755.

Sharia Law is specifically addressed in the text of Question 755 in a way that makes it discriminatory against Islam. By so doing, Question 755 does the very thing many of its supporters, even here on KnowABit, have argued as justification for excluding Sharia Law. These supporters bring up the lack of equality before Sharia Law [3] as justification to disallow it from becoming in any way a basis for any Oklahoma court rulings [4-6].

It is beyond the scope of this article to determine whether or not Sharia Law provides equal rights to men and women, or if it provides different rights of equal value, as followers of Islam might argue. However, Question 755 very clearly states that the laws of other states in the US can be considered by Oklahoman courts in making judicial decisions only “provided the law of the other state does not include Sharia Law”. Question 755 would allow other states’ laws to be considered even if those laws include Christian Law, Jewish Law, or any other religious or international law, except Sharia Law. This discrimination makes Question 755 counter to the Constitution of the United States, and arguably, counter to the Oklahoma Constitution.

Question 755, on the face of it, appears to make the reasonable case that only US and Oklahoma constitutions, laws, and regulations should determine court cases in Oklahoma. However, US law is in large measure based on laws originating outside the US. One notable example is Habeas Corpus [7], which originates in English law. Further, much of Western jurisprudence relies on Jewish Law, predating Christian law, Sharia Law, and any American laws. Any who doubt this assertion should consider the Ten Commandments, and how many of those have been given the force of law in the US. Thus, US law is already in large measure based on the sort of precedent Question 755 seeks to make unconstitutional in Oklahoma. Making illegal the reliance on any international law, or precepts of any other nation or culture, even in cases where there is no US-based law or regulation relevant to a judicial question being decided, may require Oklahoman courts in some cases to reinvent the judicial wheel.

What is the True Intent of Question 755?

As quoted by capitolbeatok.com, one of the two authors of Question 755, state Rep. Rex Duncan, an attorney and chairman of the Oklahoma House Judiciary Committee said, “Oklahomans should not have to worry that their rights could be undermined by foreign court rulings in countries that do not have our respect for individual liberty and justice for all… Our nation’s laws were developed through a democratic process and should not be negated by an irresponsible judge’s haphazard reliance on foreign rulings developed in autocratic societies. Oklahoma court decisions should be based on the U.S. Constitution, Oklahoma Constitution, and our state and national laws – period” [8].

Throwing in Sharia Law as a “red cape”, and naming the Question “Save Our State” appear to have (successfully) hooked the majority of Oklahoman voters into voting for the Question. Indeed, as reported by capitolbeatok.com: “House Joint Resolution 1056 passed the Oklahoma House of Representatives on an overwhelmingly bipartisan 82-10 vote and cleared the Senate on a bipartisan 41-2 vote” and has achieved voter support in excess of 70% [8].

However, as argued above, the text of the Question appears to fly in the face of the Constitution of the United States, as well as that of the State of Oklahoma. In fact, the Oklahoma chapter of the Council on American-Islamic Relations has already filed a lawsuit in Oklahoma, seeking to prevent the enactment of the constitutional amendment sought in Question 755 on those very grounds [9]. Further, the constitutional amendment Question 755 was put on the ballot for is not needed for the purpose the majority of its supporters voted for.

Perhaps the above quote from the honorable Mr. Duncan and especially his reported references to “an irresponsible judge” and “haphazard reliance on foreign rulings” provide insight into the true reasons behind Question 755. There has always been a tension between the legislative and judicial branches, a healthy part of the system of checks and balances set up by the framers of the Constitution of the United States. Unfortunately, when the party out of power in Washington DC is in complete control of the legislature of a state, and when that state is overwhelmingly in support of this party, certain unintended consequences may occur.

Negative Consequences from Question 755

Walter Jenny Jr., a former secretary of the Oklahoma Democratic Party argued against Question 755 in an op-ed. Among other negative consequences, Mr. Jenny points out that Oklahoman businesses involved in the $4 billion a year Oklahoman export sector may suffer as a result of Question 755. Specifically, he says “it could prevent an Oklahoma judge from considering treaties under which international trade is conducted, or the culture of a signatory to a contract. In effect, Oklahoma could become the only state in the nation incapable of enforcing international business law” even when such would potentially benefit the Oklahoman business [10].

Bottom Line on Oklahoma Question 755

While no religious law, of which Sharia Law is but one example, should become part of the law of the land in the United States, Oklahoma’s Question 755 was not needed to achieve that goal. That was already accomplished by the long-standing doctrine of the separation of Church and State. What Question 755 did achieve was to paint Oklahoma’s citizenry and their representatives in a negative light, as people who willfully discriminate against one specific religious group, to the point of enshrining such discrimination in their state constitution.

References:

[1] https://www.sos.ok.gov/documents/questions/755.pdf

[2] http://www.timesonline.co.uk/tol/comment/faith/article4749183.ece

[3] http://www.onelawforall.org.uk/wp-content/uploads/New-Report-Sharia-Law-in-Britain.pdf

[4] http://knowabit.com/2010/11/state-question-755-sole-use-of-us-federal-and-state-law-in-oklahoma%E2%80%99s-courts-%E2%80%93-part-1/

[5] http://knowabit.com/2010/11/oklahoma-state-question-755-sole-use-of-us-federal-and-state-law-in-oklahoma%E2%80%99s-courts-%E2%80%93-part-2/

[6] http://knowabit.com/2010/11/oklahoma-state-question-755-sole-use-of-us-federal-and-state-law-in-oklahoma%E2%80%99s-courts-%E2%80%93-part-3/

[7] http://press-pubs.uchicago.edu/founders/documents/a1_9_2s2.html

[8] http://capitolbeatok.com/_webapp_3337864/State_Question_755_would_ban_use_of_foreign_judicial_rulings

[9] http://www.huffingtonpost.com/2010/11/06/muslim-advocacy-group-sue_n_779755.html

[10] http://www.edmondsun.com/opinion/x422129888/State-question-is-xenophobic

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