May 2011

State lawmakers pushing measures to prohibit courts from citing religious or international laws in controversies before them are fueling anti-Muslim fervor and revealing great disdain for the U.S. Constitution, write Daniel Mach and Jamil Dakwar in an article for Religion News Service (RNS).

Mach, director of the ACLU’s program on Freedom of Religion and Belief, and Dakwar, director of the ACLU’s Human Rights Program, note that Oklahoma is not the only state that is trying to constrain courts’ ability to do their jobs. It may be one of the worst, however. The state’s constitutional amendment barring judges from citing Islamic, or Shariah, law and international law in their opinions has been temporarily block by a federal court, the two note.

Mach and Dakwar write:

The Oklahoma law, and others like it, contains prohibitions on “international law” and foreign law,” nonsensically conflating Shariah with foreign law. Other states, preferring not to wear their bigotry on their sleeves, don’t mention Shariah law per se, instead referring only to bans on “international law.” There intent, however, is unmistakable.

In addition to the ugly implication that anything Islamic is inherently un-American, these efforts are rooted in baseless idea that U.S. Muslims wish to impose Islamic law on American courts. Proponents of these misguided measures, which have been introduced in a 25 states so far, clearly seek to ride the recent wave of anti-Muslim bias in this country.

The two point out, however, that the U.S. Supreme Court has long held that “the domestic law of the United States recognizes law of nations.” They continue, “Legislation that forbids courts from considering international or foreign law raise serious questions about the separation of powers and the independence of courts and judges.”

They conclude in their article, “If supporters of these measures genuinely wish to protect the Constitution, they would do well to trust the framers’ respect for international law and religious freedom – and not trade away our most precious values for political advantage.”

Also see a recent report from the ACLU called, "Noting to Fear: Debunking the Mythical 'Sharia Threat' to Our Judicial System."

Earlier this year, Northeastern University School of Law Professor Martha F. Davis and Loyola University New Orleans College of Law Assistant Professor Johanna Kalb examined the impact of such state efforts in an ACS Issue Brief. In a guest post for ACSblog, Davis observed, “Since citations of Shariah law and international law are hardy rampant in state courts – indeed, no Oklahoma court has ever relied on Shariah law – legislators pursuing these measures are either deliberately wasting valuable legislative time or they have some other purpose.”

The ACS Issue Brief, “Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives,” is available here.

By Inimai M. Chettiar, Policy Counsel at the American Civil Liberties Union. Ms. Chettiar serves as national legislative counsel to achieve smart criminal justice reform in states across the country. She has published scholarship on the use of economic analysis to promote laws advancing social welfare.

Yesterday’s Supreme Court opinion in Brown v. Plata is controversial only to those who do not understand the magnitude of the overincarceration epidemic in this country. The high court upheld an order mandating California to reduce prison overcrowding to remedy systemic constitutional violations. The opinion in no way mandates the blanket “early release” of prisoners; instead, it encourages the state to use prisons only when doing so would be cost-effective and increase public safety. It finds that California's prisons are so overcrowded that they violate the standard of decency required by the Constitution's ban on cruel and unusual punishment.

Unfortunately, the Plata dissenters use alarmist language that would make readers believe Harold Camping predicted the Rapture a little too early. According to the dissenters, “three army divisions” of bloodthirsty “convicted felons” - “who have developed intimidating muscles pumping iron in the prison gym" - will soon descend upon California’s neighborhoods, leaving behind “a grim roster of victims” with “terrible things sure to happen” to us all.  

But in their over 30 pages of opinion, the dissenters neglect to mention several key facts.  Foremost, reducing prison overcrowding will actually lead to less crime and safer neighborhoods. Our extremist sentencing policies have bloated our prisons so severely that not only are they unsafe, unhygienic, and unconstitutional, but also excessively costly and actually a detriment to public safety. The majority notes (quoting former California Governor Schwarzenegger) that “’overcrowding causes harm to people and property, leads to inmate unrest and misconduct . . . and increases recidivism as shown within this state and in others.’” California’s communities must then absorb individuals returning from prison who are often more dangerous than when they left. Improving prison conditions makes us all safer.