By Patrick B. McGuigan

Published: 02-Sep-2010

NOTE: This is seventh in a series of articles on Oklahoma’s statewide measures.
CapitolBeatOK will be examining all the state questions on the November
ballot. Pat McGuigan is the author of “The Politics of Direct Democracy:
Case Studies in Popular Decision Making.” He was a featured speaker at
this year’s Global Forum on Direct Democracy. 

State Question 755 would amend 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 provision 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 proposed amendment would require 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.

State Question 755 would prohibit 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.”

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.

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 weeks 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.

He 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.”

While the ballot measure appears popular, it has critics.

In a June 4 Edmond Sun article, Council on American-Islamic Relations spokesman Ibrahim Hooper said the measure was based on misconceptions of Sharia law and could have unintended consequences. He said the proposed constitutional amendment could impact Muslims who want to pray in the workplace, which would create future legal challenges and expense for the state.

State Question 755 has received national attention, and Duncan has been interviewed about the proposal by several national news outlets.

However, the proposal appeared less controversial among Oklahoma legislators. 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.

Duncan has predicted the measure will receive similar overwhelming support from voters. Recent polling indicates the measure will pass, although many citizens remain uncertain. A poll conducted July 16 to 21 for The Tulsa World found that 49 percent of likely voters supported State Question 755, while 24 percent opposed it and 27 percent were undecided.