Opinion: What's Wrong With Oklahoma's Shariah Amendment?

(Nov. 29) -- In early November, 70 percent of Oklahoma voters approved changing the state's constitution to instruct state courts to rely on federal and state law when deciding cases and not to use (1) international law or (2) Shariah, the sacred law of Islam. Less than a month later, a federal judge ruled that it is unconstitutional for the Oklahoma voters to so restrict its judges.

Sponsors of the law pointed to a New Jersey decision in 2009. A Moroccan man raped his wife, and the judge refused to issue a restraining order because of the man's religious belief that his wife must submit to sex. The appellate court reversed the decision, but appeals are costly and time consuming. The New Jersey case is unique in this country, but in England and some other non-Muslim countries, Muslims can enter special Shariah courts to decide divorce and custody cases if both parties agree.

The executive director of the Oklahoma chapter of the Council on American-Islamic Relations sued, claiming that the new law violates the U.S. Constitution. On the other hand, Mohammed, of the Islamic Society in Oklahoma, expressed less concern. "I don't think it's going to affect anyone."

But the debate misses the larger point.

This new law may well be unnecessary, since the U.S. Constitution already tells a judge not to use Shariah law in deciding cases. Neither federal nor state courts can "establish" a religion, and applying the law of a religion would be garden-variety establishment.

Our civil laws are often derived from religious beliefs -- for example, laws against theft reflect the Commandment that "thou shalt not steal" -- but the judges enforce the statute, not the commandment. Courts can no more enforce Shariah than they could enforce canon law or the commandant that says that God is one.

Courts routinely enforce "international law" when they enforce treaties. However, the treaties do not become the law of the United States until the court first decides that the treaty has become part of our domestic law. That usually happens when a federal statute enforces the treaty or the language of the treaty makes clear that it is "self-executing."

For example, several years ago, President George W. Bush ordered state courts to follow the Vienna Convention, which requires the police, when they arrest foreign nationals, to notify their foreign consulates. Texas did not do that. The U.S. Supreme Court sided with the Texas state courts, not President Bush. The Vienna Convention, the court said, is not self-executing and therefore is not binding as domestic law.

When the Oklahoma Constitution tells judges not to enforce international law, it is only saying that judges should not enforce a treaty until it becomes part of our domestic law.

The U.S. Supreme Court has been criticized for citing foreign law in the past, but Justice Stephen Breyer, in a speech to the American Bar Association several years ago, said "I promise" that the court does not cite international law "as binding" but only to encourage foreign courts to protect human rights. "It sort of gives them a little leg up for rule of law and freedom," he said.

If Breyer does not cite international law as binding, one can hardly criticize the people of Oklahoma when they tell their state courts to do the same thing. Foreign law becomes binding on our courts only after it becomes domestic law.

The new Oklahoma law may not be necessary. It may be wordy, but state constitutions are seldom pithy. The law simply makes clear what should already be the law: Our secular courts enforce secular law and we do not excuse rape because the perpetrator thought his religious beliefs entitled him.

Ronald D. Rotunda is the Doy & Dee Henley chair and distinguished professor of jurisprudence at Chapman University School of Law.