Tuesday, November 16, 2010

This Just In: Oklahoma Saved From Non-Existent Threat

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One of the stranger things coming out of the recent midterm elections was a ballot initiative in the state of Oklahoma that purported to ban any consideration of "Sharia law" in decisions of that state's courts.

The measure, known as the "Save our State" amendment, also banned the state's courts from "considering or using international law" in their decisions.

When I first heard about this, I confess I was intrigued. I wasn't even aware Oklahoma needed saving. Was there some sort of movement afoot to impose Islamic jurisprudence on the good people of the Sooner State? Were bearded imams ascending the bench in Tulsa, Muskogee, and Oklahoma City and issuing fatwas that thieves have their hands amputated and adulterers be stoned to death in public? (And if so, wouldn't those remedies actually be popular among a certain class of voter?)

Well, no. As it turns out, this was another example of a "solution" without a problem. Even the bill's supporters admit that there's never been a case in Oklahoma - ever - where anyone has tried to apply Sharia law.

But, they say, there was a case in New Jersey (a place probably as foreign and exotic to most Oklahomans as Yemen or Dubai) in which a particularly boneheaded family court judge denied a Muslim woman a restraining order against the husband who repeatedly raped her by basically shrugging and saying, "Hey, it's his religion. He didn't think he was doing anything wrong."

Fortunately, the New Jersey appellate court quickly smacked that decision down, ruling, "Hey, doofus, there's a long line of cases saying you can't use your religion as a defense against criminal laws, like the ones against polygamy and the use of peyote in religious rites. Remember those, dimwit?" (I'm paraphrasing, of course.)

But who wants to hear that well-reasoned, well-settled and existing law can deal with the one case in the country where some county judge made the error of looking at what he thought (incorrectly, as it turned out) was Muslim law? When demagogues want to whip that fear up, the fact that there's no crisis should be no bar to the free exercise of religious hysteria.

In the immortal words of a great Western statesman (Mel Brooks' character Governor LePetomaine in the movie "Blazing Saddles"): "We've gotta protect our phoney-baloney jobs, gentlemen!"

Problem is, while "Sharia law" sounds impressive and scary, the people who are most afraid of it probably would struggle to define exactly what it is, other than equating it with "Islamic law."

But once you start doing the most basic research, the first thing you find is that Muslims themselves argue all the time about what religious law requires. The Sunnis have one view, the Shi'ites have another, and even among those two main groups, there are sub-groups like the Hanafi, the Wahabi, etc. etc.

I thought Protestants were argumentative about fine points of doctrine, but they're practically monolithic compared with Muslims. And don't even get me started on the Sufis. Now that I think of it, maybe that is a good reason for banning even the mention of Sharia law from our courts. The ones we have are complicated enough.

As so often happens, however, laws that seem like a good idea on the surface may well have unintended consequences. A University of Oklahoma law professor has wondered if, since the law purports to ban consideration of "precept[s] of another culture and another nation" in court decisions, wouldn't it also ban consideration of the Ten Commandments? (Contrary to what some people seem to believe, Moses was not an American.)

More seriously, some legal scholars have wondered, how does the prohibition against using other countries' law in the decision process affect the interpretation of contracts with overseas businesses? Are German, Dutch, Japanese, etc. companies going to be less willing to deal with companies in Oklahoma (thus costing the state jobs) as a result?

As of this writing, a federal judge has stayed implementation of the new law, pending further review, on First Amendment and other grounds. So a law passed in the heat of emotion and fear will receive scrutiny in the cold light of the Constitution, while the people who claim to revere that very Constitution scream about "activist judges."

Hey, what's more American than that?

3 comments:

Ali said...

Ah, Oklahoma. They can usually be counted upon to make us here in Texas look just a tiny bit more sane in comparison.

ThePaulR said...

It's not just Sharia law (or the Ten Commandments) they can't consider - it's pretty much all of English common law or things like the Magna Carta. Basically, everything that went into making up our legal system as we know it.

Fran said...

And isn't the Pope based out of Italy? So Catholic law is out. Martin Luther was German, right? So Protestant law is a non-starter.

I guess we'll have to use First Nations' shamanism as a theological basis. . .?