YES on SQ 755: A closer look

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NOTE: This is what I get for writing at 2 a.m.; I wrote no when I meant YES -- as in vote YES on SQ 755. Thanks to the observant reader who caught it.

Oklahoma State Question 755 is another fine example of a proposed constitutional amendment that Ayatollah General Drew Edmondson eviscerated on its way to the ballot, misusing his power to rewrite ballot titles, without check or balance. As with SQ 754, Edmondson left out some important points and distorted others in his rewrite of the "gist of the proposition."

(By the way, this sort of thing is why we need Scott Pruitt as our next Attorney General.)

The principle behind SQ 755 is straightforward: In determining cases, Oklahoma judges should stick to the laws approved by the people of Oklahoma and their representatives, not laws in foreign jurisdictions or laws of foreign cultures over which the people of Oklahoma have no control.

Here is the amendment that would be added to the Oklahoma Constitution, as Article 7, Section 1, Subsection C, if SQ 755 is approved by the voters:

C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

The passage of SQ 755 would make a minor correction to Subsection A of Article 7, Section 1, ("State Industrial Court" replaced with the current name of "Workers Compensation Court"), and would add a new Subsection B, which gives a name to Subsection C.

Click this link for the Oklahoma SQ 755 PDF showing the legislation that contains the proposed constitutional amendment and Edmondson's rewrite of the ballot title.

Edmondson's ballot title fails even to hint at a point that is the key to the whole amendment: "The courts shall not look to the legal precepts of other nations or cultures."

There was a U. S. Supreme Court case in 2003 -- Lawrence v. Texas -- in which the majority decision cited foreign laws and foreign court precedents in deciding to overturn laws duly approved by the elected representatives of the citizens of several states. In his dissent, Justice Antonin Scalia wrote:

In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct.

A USA Today article from the same period noted the significance of the citing of a foreign precedent and speculated about future implications:

Never before had the Supreme Court's majority cited a foreign legal precedent in such a big case. Kennedy's opinion in Lawrence vs. Texas, which was signed by four other justices, has ignited a debate among analysts over whether it was a signal that the justices will adopt foreign courts' views of individual liberties.

In theory, that could mean the conservative court someday might be influenced by other countries' opposition to the death penalty, their emphasis on foreign prisoners' rights and even their acceptance of same-sex marriages. (Last month, a court in Canada lifted a ban on such unions.)

But it is far from clear that the U.S. high court routinely will turn to foreign law, and the practice has its critics -- notably Justice Antonin Scalia. When the court interprets the Constitution, he has written, U.S. attitudes about what is decent and right -- not foreign ones -- are what should matter....

Last year, Justice John Paul Stevens cited foreign law in a footnote when the majority banned executions of mentally retarded convicts. Stevens noted that "within the world community, the ... death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved."

That drew a rebuke from Scalia, who said, "The views of other nations, however enlightened the justices of this court may think them to be, cannot be imposed upon Americans through the Constitution." Chief Justice William Rehnquist and Justice Clarence Thomas joined Scalia in his dissent.

In the Texas case, Scalia -- joined once again by Rehnquist and Thomas -- wrote that "the court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this court should not impose foreign moods, fads, or fashions on Americans." (Justice Sandra Day O'Connor voted with the Kennedy majority in the case but wrote a separate opinion.)

The last phrase in the Scalia quote is actually from Justice Clarence Thomas, in a footnote in his concurring decision denying certiorari in Foster v. Florida (emphasis added, citations removed for readability):

Justice Breyer notes that the Supreme Court of Canada has expressed concern over delays in the administration of the death penalty in the United States.... I daresay that court would be even more alarmed were there, as Blackstone commended, only a 48-hour delay between sentence and execution.... In any event, Justice Breyer has only added another foreign court to his list while still failing to ground support for his theory in any decision by an American court.... While Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes, this Court's Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans.

Any American judge or justice that uses foreign law as a basis for a decision ought to be impeached. Americans didn't get to vote for the legislators in France or Sweden or Russia. We didn't get to vote for the officials who chose the justices on the European Court.

Now, to address specifically the question of sharia or Islamic law: Already, courts in Britain and Canada are giving full legal force to decisions made by sharia tribunals. How does this happen? How does this medieval system of law gain a foothold in nations whose legal traditions are rooted in Magna Carta?

For your reference:

Canadian Broadcasting Corporation's backgrounder on how the Ontario Arbitration Act has been used to set up Muslim courts of law, under which matters of divorce, child custody, and inheritance would be decided, in a binding way, according to Islamic law, rather than the laws of the state. The backgrounder explains why many women, especially those who left Islamic countries to live freely in Canada, fear this development:

The proposal ran into opposition from women's groups, legal organizations and the Muslim Canadian Congress, which all warned that the 1,400-year-old Shariah law does not view women as equal to men.

In her report, [former Ontario Attorney General Marion] Boyd noted that some "participants in the Review fear that the use of arbitration is the beginning of a process whose end goal is a separate political identity for Muslims in Canada, that has not been the experience of other groups who use arbitration."

In May 2005, the Quebec National Assembly unanimously supported a motion to block the use of Shariah law in Quebec courts. ...

The arbitration process as set out in the Arbitration Act is voluntary. Most of the concerns about the creation of "Shariah" tribunals have focused on the fear that Muslim women may feel they are being forced into taking part in a process of binding arbitration according to Muslim family law instead of resolving their disputes through the court system.

And in Britain, in 2008, the Daily Telegraph reported that Sharia courts had been in operation for some time:

Sheikh Faiz-ul-Aqtab Siddiqi, whose Muslim Arbitration Tribunal runs the courts, said that sharia courts are classified as arbitration tribunals under a clause in the Arbitration Act 1996.

The rulings of arbitration tribunals are binding in law, provided that both parties in the dispute agree to give it the power to rule on their case....

Mr Siddiqi said that in a recent inheritance dispute handled by the court in Nuneaton, the estate of a Midlands man was divided between three daughters and two sons.

The judges on the panel gave the sons twice as much as the daughters, in accordance with sharia. Had the family gone to a normal British court, the daughters would have got equal amounts.

In the six cases of domestic violence, Mr Siddiqi said the judges ordered the husbands to take anger management classes and mentoring from community elders. There was no further punishment.

In each case, the women subsequently withdrew the complaints they had lodged with the police and the police stopped their investigations.

Melanie Phillips' Spectator column on the topic is a lengthy rebuttal of the willingness of Rowan Williams, the Archbishop of Canterbury, to yield to the establishment of sharia in Britain:

Either way, his proposal would also mean that Britain would simply abandon its female Muslim citizens whose parlous position in respect of forced marriages, honour killings and all the other horrors that follow from their second-class religious status would be institutionalised by giving sharia law official recognition. Dr Williams says such women should still retain the right of appeal to the English courts if their human rights were breached under sharia. What absurdity is this? It is the cultural assumptions which flow from sharia which lead to the oppression of Muslim women. How is the right of appeal to human rights law going to help women who are beaten and killed by men who do it in the name of religion? In order to protect our female Muslim citizens, we need to remove from them the yoke of sharia law, not institutionalise it with the seal of official approval....

The rules of our society have always been entirely clear: one law for all. The only challenge to that has come from those Muslims who want to destroy that foundational precept and along with it British culture and western society. And now the head of the Anglican church has joined them in wanting to tear up the rules governing the position of minorities which have been perfectly clear ever since the Enlightenment. These rules hold that religious minorities can practise their faith and religious precepts but under the over-arching umbrella of the law of the land. That means where there is a conflict between minority precepts and the law, the minority gives way. While minorities should be given the freedom to practise their religion, they must not seek to impose their own laws and customs on the majority. That is how overlapping identities can be accommodated; it is how a majority culture can acknowledge the value of other cultures without destroying itself and a nation's identity; it is the very essence of a tolerant, decent, liberal pluralist society.

Every minority until now has lived perfectly happily under that formulation. What we are now facing is a push by certain British Muslims, backed up by Islamist violence and intimidation, to change the rules of the national cultural game. There is only one proper response to that: to say that not one inch of leeway will be given to sharia law, that British society will not dilute the legal principles which govern all its citizens, and that Muslims must observe the same rules that govern every other minority in this country.

And that is what Oklahomans must say on November 2: Not one inch of leeway to sharia law or to the judicial imposition of any law that has not been duly established under our Constitution and statutes by our elected representatives. Vote YES on SQ 755.

MORE: A good overview of the sharia controversies in Canada and Britain, by Eileen F. Toplansky at American Thinker

Perspective on SQ 755 from ztruth, an Oklahoma blogger who writes about Islamism in America.

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Nathan said:

You mean vote YES on SQ 755? I think that's a typo. Unless I'm reading it wrong, but it is early in the day.

Arrggggh! It was way too late in the day when I wrote that, and, yes, I wrote NO when I meant YES. Thanks for catching it.

Nathan the Lawyer said:


I saw a commercial for this bill that suggested it would put fewer lawyers on the judicial selection panel. If this is true, it is a dubious selling point. I believe all judges in Oklahoma have to be lawyers, so what is wrong with being selected by those in their own profession?
There are many erroneous beliefs about lawyers in the public, and conservatives do not do much to correct these misconceptions. I feel this misconceptions are encouraged by the large media entities because they represent the bigger players who can bend the rules to their advantage. A common one is that lawyers will lie for their clients, they will not. A lawyer who makes a false statement to a court loses his or her license, pure and simple.
Big companies do not like it when plaintiff's lawyers get involved and make the companies follow the laws designed to protect the rest of us. For example, when a natural gas company, who I will not name here, illegally billed one of my family members thousands of dollars in transportation charges on a gas well he owns, they were probably a little annoyed that a plaintiff's lawyer made them give it back. They would prefer my family distrust all lawyers, so that we would never call one. If they do that to 100 well owners, the company makes an extra million dollars.
As conservatives, we have to be aware of how our own ideals can be twisted to help our enemies. This gas company might be actively supporting anti-family groups all the while having conservatives angry because my family member got double the money that was taken from him. (he did not, but "outrageous" settlements are one of the big media favorites)
Taking it back to that commercial in favor of 755, if the supporters of 755 are going to appeal to ignorant notions, that lawyers are somehow less trustworthy than the population as a whole, then I feel obligated to scrutinize it closely before casting my vote. Lawyers are not enemy.

mark said:

Michael -

While I agree in principle with this proposed Amendment (SQ 755), I will be voting NO because it is so poorly drafted that it will ultimately cause more serious problems than it will prevent.

First of all, I agree with Justice Scalia's dissent in Lawrence v. Texas insofar as he criticizes the majority's use of foreign law. However, the problem in that case was that the majority was tending to use foreign law as a "rule of decision", i.e. as the governing law in the case.

The problem with the SQ 755 Amendment is that its prohibition goes well beyond "rule of decision" use; it also prohibits a court from even "looking" to or "considering" foreign law. That would have the unintended consequence of precluding legitimate uses of non-American law that have been employed by American courts for over 200 years.

For instance, it has always been the case that American courts regularly research and reference the historical, "received" common-law of England in order to understand the "starting point" for the development of American common law (~1789). This is often a critical exercise in a court's understanding and application of American common law. To a somewhat lesser extent, similar principles apply to statutory interpretation. Also, the same process can be important for historical French "civil" law whenever a court is called upon to construe or determine the meaning of certain Louisiana state law. In these ways non-American law is legitimately used by a court to understand the historical development of American law, not utilized illicitly as a "rule of decision".

It is also likely that courts will have rare, but legitimate, need to understand and reference Sharia law. For instance, in the area of domestic relations, it is conceivable to me that a judge would need to understand the agreements and/or expectations of a Muslim husband and wife in the context of their own culture, just as courts regularly reference the Christian belief systems of domestic litigants. Again, non-American law is legitimately used to understand a factual context, not illicitly used as a rule of decision.

As currently drafted, the SQ 755 Amendment is a "train wreck". However, were it re-written as follows, it would still achieve its worthy aim while not impairing traditional judicial functioning --

"No court of the State of Oklahoma shall utilize as a rule of decision in a case before it any legal precept of a nation other than the United States of America, or the cultural law of any sectarian group."

Interesting points, particularly regarding our inherited English (and, for Louisiana, French) common law, and the distinction between rule of decision and . I'm somewhat concerned at the thought that a court would consult the "agreements and/or expectations of a Muslim husband and wife in the context of their own culture" given that this can include (depending on the strictness of adherence to Sharia of the couple in question) spousal rape, beatings, and honor-killing.

I'd love to have a rebuttal from the proponents. (I believe that State Rep. Rex Duncan, an attorney and a candidate for District Attorney in Osage County, is the principal author of the proposal.)

Nathan, that's a different state question -- 752. It would change the composition of the judicial selection panel from six lawyers and six non-lawyers (who may be married to or closely related to lawyers), to six lawyers and eight non-lawyers (who may NOT be married to or closely related to a lawyer).

Having watched the local judicial races from a closer vantage point this go-round, I've learned that a lawyer could lose his license for speaking truthfully and honestly, and that there's a whole lot that goes on behind the scenes that the public is deemed -- by the legal fraternity -- as too unwashed and unworthy to know about. It makes me sick.

I have also noticed that lawyers will not -- in fact they dare not -- speak frankly about a judge's shortcomings in public, because the judge has a wide range of opportunities for retribution.

One more thing: The bar association -- a private club -- should be given NO official role whatsoever in the oversight or our legal system.

Lawyers earn public distrust when they are more focused on what they or their clients can get away with than on doing justice. The letter of the law vs. the spirit of the law is an important distinction that seems to be forgotten all too often by the insiders.

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This page contains a single entry by Michael Bates published on October 29, 2010 12:13 AM.

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