I had to fight on this one. It’s wrong.
SQ 755 must go – Letter to Editor, The Tulsa World 11/14/2010 State Question 755 forbids Oklahoma courts from considering Islamic or international law and singles out one religion for disparate treatment. This is a violation of my rights as a non-Muslim, and robs me of the ground on which my own legal protections stand.
If the state wants to ban consideration of any and all religious traditions, including referring to or drawing upon any notion of Judeo-Christian values, the Ten Commandments as a body of legal tradition, the concept of a Christian nation, God, the Bible and prayer in schools, then that would be equal treatment and I will accept it. Singling out one religious group, especially the least popular one, licenses discrimination against any group that becomes unpopular in the future. This measure is a violation of equal protection, and of the Civil Rights Act. Including a measure against considering international law in rulings also violates the separation of powers at the state level. Legislating which bodies of superior law, contractual implications and precedent may or may not be considered by a court, whether that be common law tradition, Blackstone, Justinian’s law, a U.N. resolution or the Geneva Convention against torture, it is an attack on judicial freedom, and that is a violation of my freedom as a citizen of the Oklahoma to live in a fair and just political system with the protections that separation brings. The law violates the Constitution of the state of Oklahoma and must be struck down. — Original: [Tulsa World] [Daily Oklahoman]
Response to commenters:
There are a couple of theories of constitutionality – one says it’s ok to have a self-contradictory constitution, and we can write whatever contradictions we want into it – like proclaiming the equality of all people and religious freedom and then having provisions for denying both. Another approach to constitutionality says contradictions at a constitutional level cannot be allowed to exist. You can’t say freedom for all, and then say ‘but we really don’t mean that’. So yeah, it’s unconstitutional to make an ammendment to the constitution that counteracts the constitution.
Also, SQ755 isn’t banning Sharia law, it’s banning considering it in any court case. The problem with that can be illustrated like this. In my own religious tradition, part of the marriage agreement is that our children will be raised in our Faith. In the case of divorce, a judge can consider that both parties entered into contractual assent to this at the time of marriage, and that can affect specific visitation rights that may be necessary to ensure the contract is honored. For me, but not for someone who is Muslim. That’s discrimination. Now where Muslim law provides for something that’s a violation of Oklahoma law, like cutting off hands, beating wives, etc, judges are already unable to ignore laws against torture, maiming, and abuse – it simply is not an issue.
SQ755 is driven by tin foil hat wearing sensationalism that says they’re coming for us to make us live by the Koran, and that’s simply untrue, nor does this law in any way address that, if it were. And, frankly, it makes us look like a bunch of bumpkins. It’s also blatantly discriminatory in a bigoted Old South sort of way – watching the sponsors on TV saying we’re unabashedly Judeo-Christian in our law, says this isn’t about protecting people from the abuses of any and all religion, but about establishing one religion and persecuting another. It’s dishonest, and frankly I won’t be party to a legal fiction – a lie.
All this said, I’ve no intention of debating this ad infinitum in this forum. It’s true, the people have spoken. The people are wrong, and they’re quite capable of being wrong. Law isn’t about whatever enough people want to pull off at the voting booth – that denies the constitutional form of government itself, and makes it dishonest to defend any constitutional ammendments. Law is about preserving rights for everyone, even when we ourselves are uncomfortable. A pure majority is an un-American way of doing law, an un-Oklahoman way of doing law, and is more appropriate to some kind of fundamentalist religious legality than any constitutional environment. In other words, proponents of SQ755 have more in common with those few fundamentalists who would like Sharia Law to rule everything, than either party does with constitutionalists. As a constitutionalist, I reject both forms of fundamentalism in a legal context. So as far as the debate goes, I’ll continue it in a legal context, supporting a constitutional form of government that’s consistent, within the courts.