Q&A on Anti-Islam Ballot Measure
What is Shariah?
Shariah is a dynamic legal framework derived from the Quran (Islam’s revealed text), the traditions of the Prophet Muhammad, the ongoing consensus of Islamic scholars, and analytical reasoning.
“Brannon Wheeler, history professor and director of the Center for Middle East and Islamic Studies at the United States Naval Academy, said critics of Islam mistakenly assume that Shariah law is a set of fixed principles that apply to every Muslim, everywhere…’There’s no text that is entitled The Shariah,’ Wheeler said. ‘It’s not a code of law. It’s not like you could go to the library and get the 12 volumes of Shariah law.’ Instead, Shariah is flexible, and applies differently in different contexts. It comes from clerics’ and scholars’ interpretations of the Quran and other holy books.” (The Tennessean, 10/24/10)
Sherman A. Jackson, Arthur F. Thurnau Professor of Arabic and Islamic Studies, University of Michigan: “At the most basic level, shariah is the Muslim universe of ideals. It is the result of their collective effort to understand and apply the Quran and supplementary teachings of the Prophet Muhammad (called Sunna) in order to earn God’s pleasure and secure human welfare in this life and attain human salvation in the life to come. While the Quran and Sunna are transcendent and unchangeable, shariah itself is the negotiated result of competing interpretations. In fact, most Muslims tend to speak not of shariah but of fiqh, which literally means ‘understanding’ and underscores the distinction between God’s prescriptions on the one hand and the human attempt to understand these on the other. This in turn explains two other unavoidable characteristics of shariah: diversity of opinion, and inevitable change…
“Islam without shariah would be Islam without Islamic ideals. While most non-Muslim Americans may think of Islam without shariah as simply Islam without rules or criminal sanctions, for Muslims Islam without shariah would also mean Islam without prescriptions on ablution, prayer, alms, sales, diet, filial piety, civics, etc. While the discourse in America around shariah will probably continue to succumb to the self-serving tendency to ‘compare my ideals with your realities,’ shariah itself will continue to inspire Muslims, especially in their personal lives, to strive, with hope and humility, to narrow the gap between the unacceptable ‘is’ and the ever-elusive ‘ought.'” (Huffington Post, 9/11/2010)
Why is this measure unconstitutional?
The Establishment Clause
The First Amendment directs all government bodies to “make no law respecting the establishment of religion.” This measure violates that basic principle of American law and governance by specifically targeting one faith and one religious community.
Separation of Powers
Our federal system and our state system is in part governed by the concept of separation of powers. One branch of government cannot restrict what another branch of government can consider in terms of doing its job — in this case, deciding cases.
International law refers to the conduct of the relationships between sovereign nations. International law consists of international public law (treaty law, law of the sea, international criminal law, international humanitarian law, e.g. United Nations and Geneva Conventions); international private law or conflict of law (determines jurisdiction in which cases and issues are heard, e.g. bilateral trade agreements and enforcing arbitration); and supranational law (based on limitation of rights of sovereign nations, e.g. European Union).
Courts since 1492 have been recognizing the laws of other countries. International law is, according to the Supremacy Clause of the U.S. Constitution, the law of the United States of America.
Article VI, Clause 2 (also known as the Supremacy Clause) of the U.S. Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
State courts are thus explicitly bound by this constitutional requirement. Therefore state courts have to apply international law, through treaties, in the same way that federal law is applied. A state or the United States of America are not bound by international custom; they can choose to follow or not follow it.
Another example of state courts being constitutionally bound by international law is federal common law. Federal common law is the common law adopted at the federal level, instead of by various states. Through the decision of Sosa v. Alvarez (2004) it determined that international custom is federal common law.
Lastly, there is comity, the basic courtesy between nations, as in the respect for the laws of another nation. This is a basic requirement spelled out by the Supreme Court of the United States.
Rick Tepker, the first member of the University of Oklahoma School of Law faculty to try a case before the U.S. Supreme Court said: “I would like to see Oklahoma politicians explain if this means that the courts can no longer consider the Ten Commandments. Isn’t that a precept of another culture and another nation? The result of this is that judges aren’t going to know when and how they can look at sources of American law that were international law in origin.”
How will this measure negatively impact Oklahoma Muslims?
Islamic law includes dietary requirements for Muslims similar to those for Jews who keep kosher. This measure will prevent Oklahoma from establishing protections to ensure that businesses do not sell falsely-labeled products to consumers.
This law would also interfere with the right of Muslim Oklahomans to be buried according to their religious beliefs and practices.
Other areas of life for ordinary Oklahoma Muslims negatively impacted by this measure could include denial of the right to wear head scarves in driver’s license photographs, to execute wills, to have a home mortgage based on Islamic economic principles, and to enforce Islamic marriage contracts.
How will this measure negatively impact Oklahomans of all faiths?
It will prevent Oklahoma courts from implementing international agreements, honoring international arbitrations, honoring major international human rights treaties, honoring marriages and divorces from other countries, and will cost jobs by sending the message that contracts between Oklahoma companies and international partners will not be enforceable. Oklahoma could become the only state in the nation incapable of enforcing international business law.
This measure casts aside the principle of equality under the law and returns us to separate but unequal citizenship classes.
What about stonings, mutilations, rulings on apostasy, and other controversial issues associated with Shariah?
This measure is not about these hot button issues. No one has or will ever propose anything to do with criminal punishments often associated with Shariah. If the sponsors of this measure wished to ban these practices, they could have offered specific language. They did not. Instead, they exploited the growing anti-Islam sentiment in American society to demonize Islam and marginalize Oklahoma’s Muslim community.
Who is behind this measure?
State Representative Rex Duncan (R-Sand Springs), the main sponsor of the ballot measure, has in the past proposed legislation prohibiting Muslim women from wearing religious head scarves (hijab) in driver’s license photos and refused to accept a Quran, Islam’s revealed text, from a Muslim advisory council. Duncan said he refused to accept the Quran because, “Most Oklahomans do not endorse the idea of killing innocent women and children in the name of ideology.”