Group seeks unprecedented injunction to stop S.Q. 755

Patrick B. McGuigan

Published: 04-Nov-2010

Today (Thursday, November 4), the head of the Oklahoma chapter of the Council on American-Islamic Relations (CAIR-OK), Muneer Awad, announced he has filed a lawsuit seeking to prevent the Oklahoma State Election Board from certifying the results of Tuesday’s referendum on State Question 755.

Late this afternoon, Election Board Secretary Paul Ziriax told CapitolBeatOK the agency had not been “served” in the lawsuit, and that he could not comment.

At a state Capitol press conference with 11 television cameras and at least that many print reporters, Awad said he had moved against the constitutional amendment. He agreed, in response to a question from CapitolBeatOK, that seeking to prevent certification of the results is probably unprecedented in Oklahoma law.

The proposition gained overwhelming popular approval in this week’s election, garnering 695,568 votes (70.08% of the total) in favor, with only 296,903 (29.92%) against. However, Awad said the 30% who voted against the measure were a source of encouragement.

Also speaking at the Capitol press briefing were Chuck Thornton (Deputy Director, ACLU-Oklahoma), Imad Enchassi (Imam, Islamic Society of Greater Oklahoma City — ISGOC) and Nathaniel Batchelder (Director, Central Oklahoma Human Rights Association — COHRA).

State Question 755 amends the Oklahoma Constitution to explicitly state that judicial rulings based in or drawn from foreign precedents have no bearing on Oklahoma state court decisions. While the amendment would apply to all non-domestic legal precedents, its impact on “Sharia” law is attracting the most attention.

House Joint Resolution 1056, by state Rep. Rex Duncan (a Sand Springs Republican) and state Sen. Anthony Sykes (a Moore Republican), placed the “Save Our State” constitutional amendment before Oklahoma voters.

The amendment requires courts to “uphold and adhere to the law” as provided in the U.S. Constitution, the Oklahoma Constitution, the United States Code and federal regulations, Oklahoma Statutes and rules, and established common law.

The new amendment to the state constitution prohibits all Oklahoma courts from considering the legal precepts of other nations or cultures, including in cases of first impression. (Cases of first impression involve issues where no law or precedent is in place to resolve the dispute. That can open the door for referencing legal systems in, for example, other states or jurisdictions.)

The proposed amendment declares that courts “shall not consider international law or Sharia Law.”

Much of the strongest language in today’s press conference focused on the latter provision. Awad agreed there is a credible legal position to oppose use of foreign case precedents in domestic U.S. cases, but said the amendment’s provisions against international law would put the state in violation of federal constitutional requirements to respect and uphold laws and treaties approved by Congress and the U.S. government.

Later, in concluding remarks, Awad described the new provision as “extremely broad, and extremely offensive.” He said that adherents of Sharia and Islam are bound by religious duty “to respect the law of the land.”

Batchelder, who runs the Peace House in Oklahoma City said that S.Q. 755 was “pointless and anti-Muslim.” He said the new amendment was “foolish.” Thornton of the ACLU said he was “amazed the continuing ability of the Legislature to waste its time.” He also speculated the new amendment could have a negative impact on economic development. He said, “The idea that CAIR would somehow want to promote Sharia law is absurd.”

Enchassi spoke about his efforts to explain to his children the anti-Muslim feelings he contends flowed after the Oklahoma City bombing in 1995 and the September 2001 terrorist attacks on America. He said, “When attacks [on Islam] come from public officials, I must take action.” To bolster his case, Enchassi read from the Preamble of the U.S. Constitution, then summarized ways in which he believes S.Q. 755 violates that founding document.

The speakers chided Sen. Sykes, who praised passage of S.Q. 755 in the immediate aftermath of Tuesday’s voting. Awad wondered aloud if Sykes would have sanctioned discrimination in the days of segregation. Awad said “solidarity to the Constitution and to one another” requires the effort to seek to prevent certification of the election results.

Gadeer Abbas, an attorney with CAIR-OK, said the measure singles out a religious tradition – Islam and Sharia law – and compels that it be rejected because of its origins.

Critics of the law asserted it was designed to stigmatize, as one put it, “a minority that is currently unpopular.” Abbas said there are “perhaps a dozen ways” a state court judge could rule, under the amendment, not to allow documents or testimony based on Sharia law. 

Although it may not be an issue on most Oklahomans’ radar, the use and application of international law in the United States has received growing attention in recent years as several federal court decisions have referenced international statutes or precedents. While “original meaning” or “original intent” jurists explicitly reject use of foreign legal precedents, many less conservative analysts do so, as well.

Sharia law has not been a large issue in this country, but since the 1980s it has been more than an academic question, and a source of increasing controversy, in Great Britain, where the legal system is most like America’s.

In London, on Sept. 14, 2008, both The Times and The Telegraph reported that the British government had sanctioned Sharia courts to rule on Muslim civil cases in that country. The decision sparked widespread controversy among British citizens. Demonstrations in recent months in the British capital city and surrounding jurisdictions found both supporters and critics of Sharia law within Islamic enclaves in the London area.

Sharia law existed to a limited extent in Great Britain after 1982, with the opening of London’s Islamic Sharia Council. Today, there are as many as 85 Sharia courts in Great Britain, but not all those carry the force of British law.

Duncan, an attorney and chairman of the House Judiciary Committee, contends that the values of the American judicial system are different than the values of other countries’ legal systems. He argued that allowing courts to cite international law is an open invitation undermine the individual liberties of Oklahoma citizens.

“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,” Duncan said in a press release last spring, when the proposition moved through the Legislature.

Rep. Duncan added, “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.”

During the campaign in support of the measure, S.Q. 755 received national attention, and Duncan was interviewed about the proposal by several national news outlets. The proposal appeared less controversial among Oklahoma legislators.

H.J.R. 1056, the legislative vehicle sending the proposal to the ballot, passed the Oklahoma House of Representatives on an overwhelmingly bipartisan 82-10 vote and cleared the Senate on a bipartisan 41-2 vote.

Supporters of the proposition said, in “robo-calls” before the election, the measure would prevent use of oppressive foreign legal precedents, but would not preclude the religious practices of Muslims.