On Monday, the 10th Circuit Court of Appeals heard argument in Awad v. Ziriax, a legal challenge to Oklahoma's proposed "Save our State Amendment", which would prohibit Oklahoma state judges from considering international law, foreign law, or Sharia (Islamic law).
While the proposed amendment is clearly intended to demonize American Muslims and limit their religious freedom and access to Oklahoma's legal system, there is another equally troubling and unconstitutional element to its character — the amendment would prevent Oklahoma's judges from appropriately considering international law, including treaties that the United States has ratified.
During the argument, the judges asked Oklahoma Solicitor General Patrick Wyrick about the proposed amendment's prohibition on judicial consideration of international and foreign law and raised questions both about its constitutionality and about the chaos that it could cause in Oklahoma courts. Unsurprisingly, Mr. Wyrick had no real answer to the judges' concerns and claimed that the ban did not single out one religious code, but that the "intent here was to exclude Sharia law and international law."
The U.S. Supreme Court has said that, "international law is part of our law" and the requirements of the U.S. Constitution are similarly clear. By preventing Oklahoma's judges from properly considering treaties ratified by the government of the United States (which are supposed to be the "supreme law of the land"), Oklahoma's amendment is in direct conflict with the requirements of the U.S. Constitution.
Putting aside the unconstitutionality of the amendment, as a practical matter, preventing Oklahoma's judges from considering international or foreign law could have a number of disastrous real-world implications for Oklahoma's residents. For example, Oklahoma currently recognizes foreign adoptions that are properly issued by foreign courts. However, if Oklahoma judges were unable to consider the decision of foreign courts, Oklahoma couples who adopt children from other countries could be unable to have those adoptions recognized as legally valid in Oklahoma.
Choosing to get married in a foreign country would present a similar problem. Say you were an Oklahoma couple who was married in Jamaica. If the proposed amendment were to take effect, you might find that your marriage could not be legally recognized in Oklahoma because the Oklahoma judge could not consider whether you were lawfully married under Jamaican law — a common practice in state courts' recognition of foreign marriages.
Adoption and marriage are just the tip of the iceberg. The amendment could also negatively impact Oklahoma's businesses. For example, if an Oklahoma company and a German company choose to have their contract governed by German law, the proposed amendment would require the Oklahoma court to ignore the clear will of the contracting parties. In addition, foreign businesses could be deterred from transacting with Oklahoma's companies because Oklahoma's courts would be unable to uphold international obligations and protect their interests. During a time when job creation is the priority issue for the American public, do we really want laws restricting businesses from contracting internationally?
While it might be politically profitable to render American Muslims second-class citizens, or to oppose anything "foreign" or "international", the Constitution is clear, and we should expect our elected leaders to stick to the Constitution and to uphold America's commitment to equality as well as its obligations under domestic and international law.