Targeting Sharia: How International Law is Playing Out in Legislatures and Courts

By: Amina Haleem

The fear of Sharia law is having a uniform impact on state legislatures and their constituents. There has been a seemingly coordinated movement to pass laws that would unconditionally prohibit the consideration or application of international law in state courts. For example, in 2010, 70% of Oklahomans voted to pass a constitutional amendment measure called “Save Our State Amendment” or State Question 755. This law stemmed from the unsubstantiated dismay that foreign rules would supersede U.S. laws, the amendment aimed to bar state courts from considering international law in any legal proceedings. The language of the amendment raised a red flag, as it did not only mention international law in general terms, but specified that Sharia law (derived from an Islamic legal code) in particular would be prohibited in Oklahoma’s legal system. Before the election results for the amendment could be certified, the Council on American Islamic Relations (CAIR) and the American Civil Liberties Union (ACLU) jointly filed a lawsuit in Oklahoma seeking a permanent injunction against the proposed law.  However, the Oklahoma State Board of Elections wished to see the amendment enacted and vigorously attempted to defend the ban on Sharia law.

In August 2013, the Sharia law provisions of the amendment were found to be unconstitutional. District Judge Vicki Miles‑LaGrange ruled that the defendants failed to assert a compelling state interest or identify an actual problem that the discrimination against Sharia law sought to remedy. Not a single instance had been presented where an Oklahoma court applied foreign legal principles, including Sharia law. Judge Miles-LaGrange ultimately issued a permanent injunction against the election results of State Question 755 in favor of the plaintiffs because “the public has a more profound and long-term interest in upholding an individual’s constitutional rights.” On appeal, the Tenth Circuit upheld the district court’s finding that the law clearly discriminated based on religion, violating the Establishment and Free Exercise clauses of the First Amendment.

The case of State Question 755 is just one instance where a state legislature desired to pass a law limiting judicial discretion in court proceedings. The North Carolina General Assembly ratified House Bill 522 in its 2013 session to strictly prevent any court or State official from applying foreign law in a legal proceeding that would violate fundamental constitutional rights. The bill became law in August when Governor Pat McCrory declined to veto the bill, despite his belief that the law was “unnecessary”. While the language in the North Carolina bill did not mention Sharia law explicitly, critics have resolutely claimed that its purpose was to further encourage anti-Islamic prejudice. Similarly, North Carolina House Bill 695 bans the recognition of Sharia law in family courts.

In the last year, state legislatures have made it an increasingly important objective to prohibit application of international law in judicial proceedings. Over 30 states have proposed bills banning international law and most have failed. States that successfully passed such legislation, like North Carolina, have been careful not to include discriminatory language singling out religious law. The cautious and broad lingual formulation can be attributed to David Yerushalmi, an anti-Sharia advocate, and the American Public Policy Alliance. Legislators who support prohibiting international or religious law inside U.S. courts claim that the foreign principles are “fundamentally at odds” with the U.S Constitution and American jurisprudence.

The notion that international principles and foreign legal authority can never be regarded or applied in U.S. courts seems to be a concept rooted in the electoral and legislative processes. However, members of the Supreme Court have recognized value in seeking judicial wisdom from any source that provides good ideas. Senator Chuck Grassley (R-Iowa) asked then-Solicitor General Elana Kagan about her opinion on incorporating international law in the American legal system during her Senate confirmation hearings. She responded that  judges can look to various legal sources, including foreign court decisions, for good ideas but made clear those foreign decisions  should not have “independent precedential weight in any but a very, very narrow set of circumstances.” Justice Kagan did not elaborate on which narrow circumstances she believed would warrant application or consideration of international law precepts, but she did explain that the citation of foreign or international law may be appropriate in some cases. For example, in Lawrence v. Texas the majority opinion cited the European Court of Human Rights to support its conclusions on gay rights. Those who oppose drawing legal insight and social attitudes from foreign law, including Justice Scalia, emphasize that no legal norm or social standard should be imposed on the American people if not supported by the U.S. Constitution.

The crux of the issue is the potential of international legal frameworks to have persuasive force in U.S. courts. While the Supreme Court justices have acknowledged the increasing relevance of foreign legal authority, it is expected that state legislatures, especially ones with highly conservative constituencies, will continue to propose bills that forbid international or religious (i.e. Sharia) law in its state court proceedings. In a post 9/11 world, American voters may be more-so inclined to vote for anti-Sharia laws, like State Question 755 in Oklahoma. But international law has become more pronounced in the American adjudication process in recent years, as evidenced by Justice Kagan’s belief that good ideas and wisdom can truly come from anywhere. Will state legislatures succeed in codifying preventive measures against judicial application of foreign law? Or will judicial discretion and autonomy prevail against these statutes? Without a definitive answer, it appears that actively targeting Sharia law is on a new trend in state legislatures.

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