The Troubling Flaws of Measures to Ban Courts from Citing International or Religious Laws

May 25, 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.