Technorati Politics 12 January 2012
By Casey Dunivan
Thanks to a federal court ruling, the controversial law passed by Oklahoma voters barring judicial consideration of international or Sharia law in court cases has been stayed. The law would amend the state's constitution to explicitly require judges to only use state and federal law when deciding cases and expressly prohibits the use of Islamic Sharia law. But the law is misleading in several respects and is based largely on public anxiety over an isolated incident in New Jersey. In passing the initiative, Oklahoma ingrained in the state constitution that Islam vis a vis Islamic law is to be publicly and legally stigmatized.
Like many initiatives that irrationally target minorities, the Oklahoma measure was the result of wide-spread fear and misinformation. The public was fretting over a New Jersey case where a judge denied a restraining order to a women who claimed she had been repeatedly raped by her husband. Judge Joseph Charles asserted that the woman's husband was exercising his religious beliefs (which he interpreted to mean a man can demand sex from his wife even without her consent) and had no criminal intent. An appellate court promptly overturned the judge noting that religious beliefs are irrelevant in a case where a woman has been raped.
The New Jersey judge made a mistake by improperly substituting a shallow understanding of Islamic law for his responsibility to protect this woman's safety. His error was confirmed by a higher court, yet the incident reverberated across the country and Oklahoma soon found itself at the center of trumped up controversy. Proponents of State Question 755 feared that Sharia law was creeping into the American court system and must be stopped. Indeed the New Jersey incident folded neatly into the argument that America was under attack by Islam on all fronts, including our legal system.
But in forbidding judges from even considering international or Sharia law when deciding cases ties the hands of judges from making independent decisions. The new measure effectively prejudices the judiciaries adjudication by narrowing the scope of legal arguments that can be considered and simultaneously discriminates against Muslims.
The bottom line is that fear over American judges imposing Sharia law on this country is unfounded and irrational. There is no evidence of a broad conspiracy and 250+ years of American legal traditions are not under threat by foreign laws. The Oklahoma case is just another example of fear-based politics playing out in an environment of misinformation and xenophobia. Hopefully the law will make its way through the court system only to find a decisive end at the Supreme Court.