Oklahoma City federal Judge Vicki Miles-LaGrange, set a Nov. 22 hearing to consider whether the Save Our State Amendment violates the U.S. Constitution. Until then, she issued a temporary restraining order preventing the state Election Board from certifying State Question 755, which passed by 70 percent last week.
The measure directs state courts to ignore “legal precepts of other nations or cultures” and specifically forbids consideration of “international law or Sharia Law.”
A Muslim activist in Oklahoma City, Muneer Awad, filed suit last week, alleging the measure violated the First Amendment, which forbids government from promoting an “establishment of religion” or interfering with “free exercise” of religion.
So why are we not surprised that Judge Miles-LaGrange ordered the injunction? Because constitutional experts seem to agree that the measure might have serious constitutional problems. “I would like to ?see Oklahoma politicians explain if this means that the courts can no longer consider the Ten Commandments,” said University of Oklahoma law professor Rick Tepker to CNN last week.
A spokeswoman for the state attorney general’s office declined to comment to Bravin on Monday.
Here’s what this ruling means: the people are allowed to play at republican democracy, with their quaint little ballot initiatives. But in the end, we have philosopher kings — in the person of unelected judges — who will do the real deciding for us.
For our own good.
As Slart noted in a comment to my last post on the subject, this new law is “vestigial,” inasmuch as the laws of other nations are not binding on federal or state courts. But this amendment forbids state judges from considering the “legal precepts of other nations or cultures” in formulating their legal rulings.
Is that a distinction without a difference?
Not surprisingly, the law sophisticates are feigning bemused outrage at the benighted rubes who foisted such an amendment upon the world (and pointing to potential problems with contracts between countries, etc.); and yet these same legal types have provided us with a legal hermeneutics that is so malleable as to be virtually unmoored, linguistically, from any idea of originary intent.
One natural response to the sophistry evident in much of the formalist interpretations of legal statutes (as living documents) is to more specifically articulate what it is we (as a community of laws) wish them to mean. And yet having done so, Oklahomans are now being told that their specificity is what potentially runs them afoul of the Constitution — that specifically instructing their judges to ignore foreign legal precepts, and in particular Sharia law, somehow “means” that they might also be talking about both English common law and the Judeo-Christian precepts that serve as a basis for US law.
But of course, this only makes sense if you say that the text of the amendment can also mean what you know very well it isn’t intended to mean — and can only be made to mean what it isn’t intended to mean by studiously ignoring the intent behind it and then extrapolating out from it a suggestiveness of what comes to count as “other nations or cultures.”
Whether you like the law or not; or whether you believe it necessary or not; whether you believe it passes the Lemon test or not; what is at stake here is the court’s ability to tell you directly that what you’ve said and meant is not what you’ve said and meant — and that what you’ve voted to establish into law is potentially unconstitutional on the basis that others who know what you meant can make the text show that it means something other than you designed it to mean.
Alternately, I likely would have avoided using something so potentially slippery as “cultures” in crafting the language of the amendment, “foreign cultures” being open to a breadth of interpretation. And trying to legislate what someone is thinking is well-nigh impossible.
Still, the US doesn’t prosecute people who don’t believe in Yahweh or who covet their neighbor’s donkey, giving lie to the suggestion that the Ten Commandments need be considered at all when making legal rulings in the US. And you don’t have to be religious to make it clear you want no sharia law considered in state legal rulings. So I’m not sure I see any problem with the constitutionality of the amendment.
****
related: “The law is moronic, of course, but that does not make it unconstitutional.”
see also, here.
Boy that was a pretty quick twisting of the Oklahoma voters intent, wasn’t it? I mean, the ink was still wet and the voting machines warm.
Western codes of law, as a social construct, are generally seen as descendants of the code of Hammurabi moreso than the ten commandments, so despite the fact that the founders of our nation, and their enlightenment ideas, were influenced by their Judeo-Christian beliefs to try and compare them to overtly religious Sharia law is a ridiculous “apples and oranges” mismatch.
I wonder what emanating penumbra this judge saw?
If that guy is going to assert that the law is moronic, he could at least explain why he thinks that. Considering the fact that some Supreme Court Justices have considered foreign law when making their decisions, I don’t think it’s moronic at all to restrict them to the laws of this country. While it’s true that our laws are descendants of English Common Law as well as other sources, I believe they have all been re-codified into our law. Therefore, the ancestors of our laws are not considered when making rulings, as you said.
I’d like to see one ruling from an OK court where the Ten Commandments were cited as being precedential.
Only then will I give the arguments of these so called ‘law professors’ any credence.
If that guy is going to assert that the law is moronic, he could at least explain why he thinks that.
From the general tone of his post, I believe that his assertion is based on its Oklahoma origins.
Objecting to it on first amendment grounds seems ass-backwards to me. A restriction on using church law in state courts seems to support the first amendment.
My Shari’a, more precious than the finest gold.
My Shari’a, for glory of Allah be told.
My Shari’a, or we may cut off heads or even more
You’re a foreign law Okies abhor
How I wish that they’d shut up.
SILENCE! I KEEEEL YOU!!!
You Americans have a first amendment “separation of church and state”. I know this because your law students laugh at the former witch candidate for questioning it.
But there’s nothing in there about “separation of mosque and state”, infidellllll!
Scienceblogs: telling you you’re a bunch of dumbasses since 2006 or so.
Dumbasses.
Brayton? That jackass?
So, to CAIR, “free exercise of religion” means US Courts should accept Muslim religious edicts as law? That is exactly the sort of thing the Establishment Clause is intended to forbid.
Jumpin’ Jeebus on a pogo stick. What sort of alternate universe have we stumbled into?
ThomasD,
If any judge today actually cited the Ten Commandments in ruling, it would be immediately thrown out on First Amendment grounds. What fucking morons.
The sad fact is the ‘professors’ are not morons, they are just pathetic shills willing to trade their integrity for whatever brownie points can be derived from servicing the ‘proper’ causes.
No too long ago that kind of blatant asshattery might get you openly derided on campus. Now it puts you in line for a chair.
in light of the fact that those who consider Sharia law abhorrent and with no place in american courts are bigoted raaaacists!!1! in the eyes the SMART ONES, i have decided that yes indeed i am an incredibly bigoted racist…if by bigoted racist you mean one who is totally against any law, religious or otherwise, that justifies and in fact demands violence against women
The judiciary’s job is to make or repeal those laws which Congress and the legislatures have neglected to make or repeal.
And Muslims certainly can continue to settle disputes among themselves with their own customs, as other groups do. Just so long as it doesn’t violate the nation’s real laws.
CLIT CUTTER BIGOTS!!!!!
My irony/sarcasm detector is on the blink so I’m not sure whether this was meant to be taken straight or with a splash of soda.
‘Cause if you read that excerpt above thus…
…I’m really hoping irony was intended.
A failed funny on my part, seems to happen a lot lately.
Splash of soda it is. But not a little umbrella.
[…] for overwhelmingly, renders ‘we the people’ obsolete and without a voice. Here’s what this ruling means: the people are allowed to play at republican democracy, with their quaint little ballot […]
Hi Jeff,
Great post! Just found you via BatesLine; don’t know how I’ve missed you, but no more. Have added you to my reader and blogroll. I wanted to let you know that I’ve linked to this post today; I had mine all written and was adding some links, found you and saw that you said better than I what I wanted to say.
Good job, glad I found you, and have a Happy Thanksgiving!
Terroja…
Leave the darkside while you still can….