Living in a state with popular initiatives and referendums is like living next door to a family of meth dealers who come out every couple of years and point guns at your house: The good news is that about half the time they don't shoot. The bad news is ...well, you do the math.
The voters of Oklahoma pulled the trigger on election day when, at the behest of the Republican majority in their legislature, they approved State Question No. 755, the "Save Our State Amendment" to the Oklahoma Constitution.
State Question No. 755 boldly guarantees that no matter what happens, Oklahomans will be in no danger of being dragged before the Grand Mufti of Muskogee to stand trial on charges of defaming the Prophet Muhammad. But it forestalls this unlikely danger at a cost. The costs include, in ascending order of importance, (1) subjecting the state to an expensive lawsuit it deserves to and almost certainly will lose; (2) deforming the Oklahoma Constitution by silently repealing the Supremacy Clause of the United States Constitution; and (3) loosing what James Madison once called "that diabolical hell conceived principle of persecution."
Question No. 755 provides that Oklahoma courts "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 and if necessary the law of another state." However, the courts "shall not look to the legal precepts of other nations or cultures . . . international law or Sharia law."
Who could be against that? Certainly not ordinary Oklahoma voters who take a break from their busy lives to vote and find themselves confronted with the question of whether Muslims should take over the state courts. That "no" vote is literally a no-brainer for anyone who hasn't got time or training to think through the background and implications.
Last week, a federal court in Oklahoma issued a preliminary injunction barring the state from certifying 755 as part of its constitution. In its preliminary order, the court noted that it seems likely that Question 755 violates both Religion Clauses of the First Amendment. It violates the prohibition against "establishment of religion" because the amendment has no purpose other than "inhibit[ing]" the Muslim religion and leads to "government entanglement with religion." It violates "the free exercise" of religion because it discriminates on its face "against a specific religious belief."
Of course, the case would come out differently if the First Commandment ("Thou shalt have no other gods before me.") were in the Constitution. But it isn't, and barring a sudden imposition of the Mosaic code on the entire nation, the court's preliminary decision is unlikely to be overturned.
Does anyone doubt that the main purpose of the "Sharia law" provision is simply to put into the state constitution a message addressed to Muslims in the age-old language of heartland communities: "We don't like your kind around here. Vamoose!"
The only justification for such a radical measure would be an imminent danger to the state. Is Oklahoma likely to be flooded soon with bloody-minded imams brandishing fatwas and scimitars? Not hardly.
Proponents of 755 say the danger really is imminent. They point to a New Jersey case called S.D. v. M.J.R. In that case, a trial judge refused to issue a restraining order against a Moroccan husband who had repeatedly raped his wife. The judge decided that the man "was operating under his belief that it is, as the husband, his desire to have sex when and whether we wanted to, was something that was consistent with his practices." Thus, the husband lacked "criminal intent."
The Appellate Division of the New Jersey Superior Court reversed the decision. It applied Supreme Court precedents showing that religious belief of any kind does not excuse a defendant from obeying "neutral, generally applicable" laws. The court said that the trial judge "determined to except defendant from the operation of the State's statutes as the result of his religious beliefs. In doing so, the judge was mistaken." Case closed.
So here's the danger: a boneheaded decision by a local judge in another state, which was reversed exactly the way it should have been--by the appellate court. Hardly a mortal threat to the nation--and nothing less would justify suspending the Constitution's guarantees of religious freedom.
All that is bad enough. But the discussion of Sharia law in 755 overshadows another flaw. The measure's definition of the permissible sources of law in Oklahoma courts directly conflicts with Article VI, § 2 of the United States Constitution, which provides that "this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." The Clause then adds, "judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."
Treaties are international law. They are also "the supreme law of the land." But they are pointedly omitted from the permissible sources of law in 755. So 755 orders state judges to ignore them. On the most basic level, would this mean that a judge is violating state law if he considers a claim or defense of a party under a treaty to which the United States is a party?
There's nothing far-fetched about the prospect: Treaty rights come before state courts in the context of enforcement of international arbitration awards, in international child-custody disputes, in criminal matters, and in many other areas. Is a state judge who obeys his oath to uphold "the law supreme law of the land" subject to removal for violating 755?
Measure 755 is yet another example of right-wing politicians who bray about their devotion to the Founders while laboring to undo what the Founders did. The Constitution can't be interpreted without recourse to international law. Without its international law background, in fact, it makes little sense. At its core it aims at creating a nation; the concept of nationhood stems from international law. Its text mentions international law twice--once in Article I § 8 cl. 10, which gives Congress power "to define and punish . . . offenses against the law of nations," and again in Article III § 2 cl. 1, which extends federal judicial power to cases of "admiralty and maritime jurisdiction."
The Founders were deeply educated in the principles of international law, and they invoked them frequently during the Philadelphia Convention of 1787 and the ratification debates that followed. One of the aims of the new Constitution, Madison said in Philadelphia on June 19, 1787, should be "to prevent those violations of the law of nations & of treaties which if not prevented must involve us in the calamities of foreign wars." He was particularly concerned that state governments would ignore international law in general, and treaties in particular. "A rupture with other powers is among the greatest of national calamities," he said. "It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole."
On July 19, Oliver Ellsworth argued to the Convention that federal judges should be part of a council that would have the power to veto any state law before it took effect. "The law of nations also will frequently come into question" in state legislation, he said. "The Judges alone will have competent information," he explained.
At its heart, Question 755 embodies three of the most toxic elements in the grossly debased national dialogue of 2010. First, it constitutes a thinly veiled threat to the independence of the courts. Follow your federal oaths, it suggests, and the people will open up a big can of Oklahoma whoopass on you at the next election. Second, like Senate Bill 1070 in Arizona, it expresses the idea that if we just throw a big tantrum, Oklahoma can ignore federal law, and America can flip off the rest of the world. In an era where our physical and financial survival depend on good relations with other countries, this is pathological.
Finally, and worst of all, it deliberately seeks to create religious division for political gain. We have seen a systematic attempt by one side of the political debate to amass power by screaming that the Muslims are coming, with their Mosques and their Korans and their Sharia, whatever that is.
The main point of 755 is quite simply to proclaim that in Oklahoma, American Muslims and their religion are unequal by law. American history teaches us that writing religious inequality into law leads at best to persecution and heartache. If you don't believe me, ask a Jehovah's Witness, whose Kingdom Halls were burned during the 1940s after the Supreme Court approved legislation aimed at stigmatizing Witness children who could not, because of their religion, recite the Pledge of Allegiance.
But a little mild persecution is the best outcome of an exercise like 755. We know from the history of Germany, Russia, the Middle East, and the Balkans that power-hungry leaders fostering religious hatred is a mortal threat to the future of a democratic nation. Oklahoma's Republicans are hoping to intimidate their real political enemies by convincing the voters that their neighbors are secretly plotting to destroy them. This is juggling with dynamite. It's a great plan right up until the moment you drop a stick.
These are not complicated lessons. We've learned them the hard way, both in this country and in the world. Like the law of gravity, they can't really be repealed by a hare-brained popular initiative.
Former Justice O'Connor, in one of her last opinions as an active
Justice, implored her colleagues and her country to continue to honor
the American principles of equality and separation. "Those who would
renegotiate the boundaries between church and state must therefore
answer a difficult question," she wrote. "Why would we trade a system
that has served us so well for one that has served others so poorly?"