Late Friday afternoon, the eagle eye of Chris Good caught this item out of Missouri, where conservative state legislators are pushing a series of measures that would preclude judges from considering "Shariah law" or the "legal precepts of other nations or cultures" when meting out justice. The most glaring of these measures, HJR 31, states as follows:
Upon voter approval, this proposed constitutional amendment requires courts, when making judicial decisions, to uphold and adhere to the law as provided in the United States Constitution; the Missouri Constitution; the United States Code; federal regulations; and, if necessary, the law of another state if that state's laws do not include Sharia law. Courts are prohibited from considering legal precepts of other nations or cultures and cannot consider international law or Sharia law.
The story Chris caught included comments from a U.S. Attorney who said, quite reasonably, that if such a measure were to become Missouri law it would probably be subject to challenge in federal court and that the Justice Department would likely be a part of that challenge. I say "quite reasonably" with confidence because you don't have to be a legal analyst (or a federal prosecutor) to see how poorly HJR 31 is written and how unconstitutional it is. Rarely, in fact, does something like this get even as far as it evidently has. (Meanwhile, a companion bill, H.B 708, which is only slightly more subtle, passed the Missouri House on April 20th. For many of the same reasons you'll read here, it is unconsitutional, too).
Let's take the first few clauses of HJR 31:
Upon voter approval, this proposed constitutional amendment requires courts, when making judicial decisions, to uphold and adhere to the law as provided in the United States Constitution; the Missouri Constitution; the United States Code; federal regulations;
There is no legal point to any of this since "courts, when making judicial decisions" in Missouri of course already are bound to "uphold and adhere to the law as provided in the United States Constitution; the Missouri Constitution; the United States Code; [and] federal regulations." In fact, Missouri's courts have been so bound for nearly 190 years, since August 10, 1821, when the state finally came into the the Union as part of the Missouri Compromise. So far, HJR 31 is the equivalent of a state law that says the President is the head of the executive branch or that the Congress heads the national legislature.
Although there may be no legal point to this language, it is worth stopping here for a moment anyway. For any reasonable state legislator, the above language, alone, would be enough to allay any rational concern he or she could possibly have about "sharia law" and its potential impact upon the American judicial system. Nothing more than this generic language is needed. That's because "sharia law," like Canon law or Talmudic law or any other religious law, is enforceable in the United States only in a private sense, between consenting adults, and so long as it does not conflict with federal or state law. If and when it does, sharia law loses out. Always. It's no more complicated than that.
In early April in the Missourian, columnist David Rosman explained precisely what that means. He wrote: "A search of Missouri courts and the State Courts Administrator website shows no incident in which Sharia law has been considered in Missouri courts. The state Supreme Court verified this fact." If ever there were an example of a government spending time and energy on a solution in search of a problem this is it. The reason Rosman couldn't find a single example of a Missouri judge considering "sharia law," much less imposing it over over federal or state law, is because even the worst judge in Missouri knows that's not the way our cherished legal system works.
Let's move on. Here's the next clause of HJR 31:
... and, if necessary, the law of another state if that state's laws do not include Sharia law.
Here's where we start to see conflict -- and problems for the drafters and supporters of the measure. First, this language seems to directly violate the language of the "Full, Faith and Credit" clause of the Constitution. It reads: "Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." All of sudden now, with HJR 31, Missouri is going to be making value judgments about the substance of another state's law? And is going to ignore the laws of those states which may approach "sharia law" differently? No federal judge is going to countenance that.
This clause draws out another problem with HJR 31. What exactly is "sharia law" anyway? It's certainly not something created and enforced per se by a sovereign body. It's not like Canadian law or Chinese law or even Iraqi law. And it's not even like the vexing, amorphous "international law" conservatives howl about every time Supreme Court Justice Anthony M. Kennedy references it in an opinion. It may greatly influence the national laws and governing principles of some countries. And it may guide the religious lives of its devout adherents. But so does the Bible, right? Would a state law that decreed that no judge could ever "consider" Biblical law appeal to you?
And how exactly would Missouri determine that, say, Kansas law did or did "not include Sharia law"? What does "including" sharia law mean? If a Kansas judge looked to sharia law principles to determine the reasonable contractual expectations of a divorcing Muslim couple would that count? As Justin Elliott at Salon and others have pointed out, in the New Jersey case typically cited by anti-sharia activists, a trial judge who mistakenly refused to issue a restraining order against an allegedly abusive Muslim husband was quickly overturned by the appellate courts there. Not because he had looked to sharia law. But because he had elevated it over state law. One case. In New Jersey. Overturned on appeal. Legislating to the lower common denominator is never a good idea.
Now, here's the coup de grace:
Courts are prohibited from considering legal precepts of other nations or cultures and cannot consider international law or Sharia law.
Note that the language says considering and consider and not something more concrete like "rely upon" or "basing their decision upon." So Missouri 's legislature now wants to tell Missouri's judiciary what it may and may not consider when trying to reach a decision about a matter before it? You may consider only the opinions of Justice Clarence Thomas, the legislators are saying to their colleagues on the state bench, but you may not consider the opinions of Justice Ruth Bader Ginsburg. You may consider this law book but not that one; this legal theory and not the other. Again, no federal judge is going to put up with this sort of nonsense.
This is especially true since American law itself, from the text of the Constitution to the jury room, is fundamentally based upon the "legal precepts of other nations or cultures." We got our common law from England. We got our civil codes from France. By its express terms, HJR 31 would ban a judge from considering John Locke or Jean-Jacques Rousseau or even the guy who, quite literally, wrote the book that is the foundation of modern Western law-- William Blackstone. Judicial consideration of the Magna Carta-- the Great Charter of Rights-- is also banned by HJR 31. And so, when you really think about it, is the Constitution itself-- to the extent it is based upon foreign "legal precepts." All in the effort of some Missouri legislators to stop something that isn't happening.
I left the strongest argument against HJR 31 for last. It patently violates the First Amendment. So far, the anti-sharia movement has generated only one federal ruling. In Oklahoma, U.S. District Judge Vicki Miles-LaGrange enjoined the enforcement of State Question 755, similar to HJR 31, which was passed by a huge margin by Oklahoma voters in the last federal election. The judge wrote:
[T]he Court finds that plaintiff has made a strong showing that State Question 755's amendment's primary effect inhibits religion and that the amendment fosters an excessive government entanglement with religion. While defendants contend that the amendment is merely a choice of law provision that bans state courts from applying the law of other nations and cultures, regardless of what faith they may be based on, if any, the actual language of the amendment reasonably, and perhaps more reasonably, may be viewed as specifically singling out Sharia Law, conveying a message of disapproval of plaintiff's faith...
... Furthermore, plaintiff has presented testimony that "Sharia Law" is not actually "law", but is religious traditions that provide guidance to plaintiff and other Muslims regarding the exercise of their faith. Plaintiff has presented testimony that the obligations that "Sharia Law" imposes are not legal obligations but are obligations of a personal and private nature dictated by faith. Plaintiff also testified that "Sharia Law" differs depending on the country in which the individual Muslim resides.... Based upon this testimony, the Court finds that plaintiff has shown "Sharia Law" lacks a legal character, and, thus, plaintiff's religious traditions and faith are the only non-legal content subject to the judicial exclusion set forth in the amendment.
Sharia law lacks a legal character. And yet Missouri politicians want to require judges not to elevate it over state law. Duh. Apart from all the other dark messages contained in HJR 31, what Missouri's legislators are saying is that they don't trust their colleagues on the bench to continue to apply bedrock legal principles that subvert religious law to secular law. Nothing Missouri's judges have done in the past 190 years warrants such disregard and disrespect. And you could easily say the same thing about Missouri's Muslims.