Voters in Oklahoma passed a constitutional amendment in 2010, called the Save Our State Amendment, which would prohibit Oklahoma courts from looking to international or Sharia Law in reaching its decisions.
Eventhough the amendment was initially passed in 2010, it has been in the news lately because The U.S. Court of Appeals for the Tenth Circuit recently affirmed the U.S. District Court’s decision to stay the implementation of the amendment due to its unconstitutionality.
Save Our State Amendment or Oklahoma International Law Amendment
The Amendment states as follows:
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 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. [emphasis added].
Proponents Argue SOS Amendment’s Neutrality
The proponents of the SOS Amendment claim that it was intended to block references to all religious law, but the specific reference to Sharia law (twice), to the exclusion of any other religious terminology makes that position seriously questionable. In reaching its opinion, the court also pointed out the fact that the proponents could not reference any occasion in which Oklahoma courts had referred to Sharia law or concepts of other countries in reaching decisions, thus lending further credence to probable motivations in passing the law.
What is interesting is that the law is being challenged for violating the petitioner’s First Amendment rights, presumably according to the Establishment Clause, which prohibits the government from establishing any sort of preference for religion, whether in general, or in terms of one more over another. It will be interesting to see whether the U.S. Supreme Court decides to hear the case, since the discriminatory language seems rather obvious, and there isn’t much dispute over what the law was trying to accomplish.
What I wonder personally, is whether such an amendment would pass judicial scrutiny if it prevented the implementation of reference to any religions at all. For example, the petitioner references the use of Sharia law in carrying out provisions of his will. Presumably, though, explicit language prohibiting reference to religions would be constitutional, since it would seem to correlate more closely with the protections of the Establishment Clause. What do you think? Would an all out religious ban be more appropriate?
