15 Jun Oklahoma’s Unnecessary Law to Ban Citation of Sharia and International Law
According to news reports, Oklahoma voters will consider a proposed amendment to their state constitution this fall that would ban “an local courts from considering Shariah or other international law in their rulings.” I have little doubt it will pass, and that (since it is an amendment to the OK Constitution) it is constitutional. But it is really unnecessary and overbroad. Indeed, it could hurt Oklahoma in some non-trivial ways, especially with regard to international business transactions and foreign investment. Here is the meat of the proposed amendment:
C. 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 law 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). The amendment is overbroad because it does not define “sharia law,” and appears to prohibit Oklahoma courts from considering international law or any other kind of foreign law in their decisions. So, a contract which selects German law, but is litigated in an OK court (like Campbell v. AIG, 976 P.2d 1102 (1999)), would be interpreted contrary to the parties’ clear intent. And a case which involves principles of international law to determine river boundaries, like Hanes v. State, 973 P.2d 330 (1998), could not be decided under those principles.
The amendment is also unnecessary because Oklahoma law (like many states) already permits courts to consider particular applications of foreign law to determine whether they violate the public policy of the forum. And if there is a big problem with Sharia law in Oklahoma, then the Legislature can address that problem if and when it arises.
Having said all of this, what is interesting is that Oklahoma voters will likely pass this amendment. As a constitutional amendment, I assume Oklahoma’s legislature is stuck with it, and Oklahoma courts as well. Indeed, there is no obvious basis for a constitutional challenge that I can think of offhand. This means that we may see some odd litigation and judicial decisions down the road out of Oklahoma. And it means that most foreign investors should be extremely wary of assenting to the jurisdiction of Oklahoma courts.