by Smita Ghosh
Lawmakers in several states have followed the Oklahoma’s lead in seeking to ban the enforcement of international law in state and federal courts.
Say what you will about Oklahomans, they certainly know how to pass a ballot initiative. Last Fall, Oklahomans voted to make English the “common and unifying language” of the state, allow individuals to opt-out of the individual healthcare mandate and—not surprisingly—to make it easier for advocates to pass more ballot initiatives in the future. (Election results here). Another Oklahoma proposition, SQ 755, has been gaining some traction among both commentators and legislators in other states.
SQ 755, affectionately known as the “Save Our State Amendment,” prevents the state’s courts from “considering or using” international law. It specifically mentions a ban against the use of Sharia law. The law, was challenged on Establishment Clause grounds by the Council on American-Islamic Relations (CAIR), and U.S. District Judge Vicki Miles-LaGrange enjoined enforcement of the law in late November.
The National Center for State Courts, a nonpartisan court research organization, reports that lawmakers in six states — Alaska, Arkansas, Indiana, Nebraska, South Carolina and Wyoming — have introduced legislation similar to SQ755. Oklahoma’s legislature has introduced a similar provision as well. Most of the legislation restricts the ban to cases where adopting international law would “violate a right guaranteed by the [state or federal] constitution” (Indiana SJR 16) or when the international law at issue “would not grant the parties” the same rights as the federal and state constitutions (Arkansas SB97). During the past year, several states included or considered including such provisions in state statutes or codes. (See the 2010 special report from Gavel to Gavel).
To many, SQ755 and other state developments are clear signs of “fear mongering” and religious prejudice. But they may have legal consequences as well.
While Oklahoma judges have never cited Sharia law, blogger Julian Ku imagines that Oklahoma judges cite international standards—in choice-of-law clauses or foreign arbitration awards—in common business opinions, and, in an ACS issue brief, Martha Davis and Johanna Kalb point out that judges implicitly “consider” international standards in other situations as well. Davis and Kalb also describe the ways in which these constraints undermine the independence of state judiciaries.
Supreme Court justices, notably Anthony Kennedy, have been criticized for referencing international law. Are theses state developments a “preemptive strike” against Kennedy-style comparisons as well? Or is the mention a mere distraction from the religious goals of the proponents of these initiatives?