By: Chad Kent
When judges are deciding cases in American courts, you’d think we would want to limit them to using laws that were enacted by our elected representatives. Not so according to U.S. District Judge Vicki Miles-LaGrange. In fact, she believes it could actually be unconstitutional.
In the 2010 election, the voters of Oklahoma approved an amendment to that state’s constitution that would prohibit judges from consulting international law or religious law in making their decisions. Of course, the primary concern for its authors – and the main source of controversy – is that this measure specifically states that it would ban the use of Islamic Sharia law in courts.
It seems reasonable that Oklahomans would want to force judges to only use laws that they had some hand in creating. But Judge Miles-LaGrange has blocked enforcement of the “Save our State” amendment because she believes it is likely unconstitutional. And last week, a federal court in Denver upheld her decision.
Unfortunately, this is simply a case where opponents of the Save our State amendment are upset that they couldn’t win at the ballot box. So now they are trying to use the courts as a way to overturn the will of the people.
It’s beyond clear that this amendment is Constitutional, so let’s look at some of the objections to it and why they are absurd:
It’s unnecessary – This one is my favorite. Some critics of this amendment claim that, since judges aren’t supposed to consult international and religious law anyway, there’s no reason to prohibit it. As the decision from the 10th Circuit explains:
“Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted . . . that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.”
This is interesting. At what point did it become a judge’s job to decide if a law was necessary? If this is a new standard that judges are going to implement, I can’t wait to see it applied to the useless environmental regulations that progressives insist on passing. Light bulb ban? Unconstitutional! Stopping a development to save the snail darter? Unconstitutional! Limits on how much energy your cell phone charger can use? Unconstitutional!!! Wow – this is going to be fun.
The point of this amendment was to reinforce the point that – even though judges were never given the power to consult other legal systems – they people of Oklahoma seriously don’t ever want them to do it. If that is unconstitutional, then we definitely need to go back and revisit the First Amendment.
One of the major arguments against passing a Bill of Rights was that it was unnecessary. Why should we pass amendments that prohibit the government from doing things it doesn’t have the authority to do in the first place?
As Alexander Hamilton argued in Federalist #84:
“For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed.”
Despite Hamilton’s feelings that it was unnecessary, the Bill of Rights was adopted anyway. Shockingly enough no judge has ruled those amendments unconstitutional for violating this mysterious “necessity clause” that no one can find but Judge Miles-LaGrange.
Just because a law or an amendment is unnecessary doesn’t make it unconstitutional. Anyone with the background to become a federal judge ought to understand that. Then again, maybe the judges in the 10th Circuit aren’t familiar with obscure examples like the Bill of Rights.
No judges are consulting Sharia law – Those who oppose the Save our State amendment love to demand that someone give them an example of Sharia law being cited in Oklahoma to prove the need for this law. If there isn’t one, they claim, that must mean the only reason for passing it is an evil hate-mongering desire to discriminate against Muslims.
And while they are correct that no one in Oklahoma has cited Sharia law, other U.S. courts have. In 2010 a man was accused of sexually assaulting his wife, but a New Jersey judge found that he didn’t do it based on Sharia law:
“This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.”
Fortunately, this ruling was overturned by a higher court. But it is simply untrue to claim that “no one” is consulting Sharia law in making judicial rulings. When you add that to the numerous times that our Supreme Court has cited international laws, it is beyond reasonable that citizens would want to make it clear that using foreign law is not a practice that is acceptable in Oklahoma.
It violates the Freedom of Religion – Apparently the argument here is, since the amendment specifically states that Sharia law is not to be used in court decisions, that unfairly discriminates against Islam.
That’s nonsense. The relevant part of the First Amendment states that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
The purpose of this measure is to prohibit the use of all religious law in courts – so obviously it doesn’t violate the First Amendment by establishing a state religion in any conceivable way.
The plaintiff in this case, Muneer Awad, claims that as a Muslim it will restrict him from exercising his religion. Once again, that’s nonsense. This amendment bans judges from consulting Sharia law. It’s not a ban on Sharia law. If the plaintiff wants to follow Sharia law in his personal life, he has every right to do so all he wants (provided that he doesn’t break the law in the process). But he doesn’t have a right to have his belief system codified into law or recognized as law in a court.
This amendment doesn’t establish a state religion nor does it prohibit the plaintiff – or anyone else – from exercising his religion – so it clearly doesn’t violate the First Amendment. This isn’t complicated.
Perhaps my favorite critique of the Save our State amendment comes from University of Oklahoma law professor Rick Tepker. He managed to combine smug, self-righteous arrogance with mind-blowing stupidity in a way that makes me smile every time I read his comments:
“Many of us who understand the law are scratching our heads this morning, laughing so we don’t cry,” said University of Oklahoma law professor Rick Tepker. “I would like to see Oklahoma politicians explain if this means that the courts can no longer consider the Ten Commandments. Isn’t that a precept of another culture and another nation?”
This guy has to be intentionally trying to make this issue confusing. No, the passing of this amendment doesn’t mean that judges can no longer consult the Ten Commandments in their decision making – because they shouldn’t be doing it in the first place.
Sure, the Ten Commandments make up part of the foundation for our legal system. Yes, they provide a great source of inspiration for the values that have made this nation great. And they are a brilliant source of wisdom to guide us while we are making our laws. But judges should not be citing the Ten Commandments as the basis of their decision making. That’s why we have laws.
In other words, a judge can’t decide to convict someone of – say – adultery because it violates the 7th Commandment. There would actually have to be a law prohibiting adultery.
Muslims won’t be able to have their wills executed properly – This argument is just outright silly. Zombie at Pajamas Media nailed the reasons why:
In your will, you can leave your assets to anyone, for any reason. You can cite Muslim law, or your personal conscience, or a dream you once had, or baseless paranoia, or no reason whatsoever to leave all your assets to your children, or your cat, or the Flat Earth Society, or even leave instructions to have it all buried with you in your casket. If the will is determined to be a valid will, no ban on Sharia will be able to challenge it.
The only exception to that is when a person wants something done in their will that would violate the law. In that case, it doesn’t matter if this amendment is upheld or not – the will shouldn’t be executed either way.
The fact that two courts have blocked the Save our State amendment from being enacted is simply judicial tyranny. The only explanation for the ruling in this case is that the judges don’t approve of this law politically, so they’ve have created an excuse to block it.
It is this type of ruling – where judges allow their own point of view to take over instead of staying faithful to the intent of the Constitution – that has rendered the First Amendment almost unrecognizable. Originally, the First Amendment was intended to ensure that the government had no ability to restrict any individual in practicing their religion or to establish a state religion. According to modern judges, that same amendment now means that a student can’t even mention the word God during a speech at his high school graduation… but hey, we must leave the door open to using the Koran as a law book in courts of law.
Gosh, I can’t imagine why the voters of Oklahoma felt the need to further instruct judges on the limits of their power.