NOTE: This post was originally published by BlogHer.
Oklahoma has a message for its Muslim population: We don’t want you here.
How else to explain Oklahoma Republican State Representative Rex Duncan’s “pre-emptive” anti-Sharia measure passed by the state’s voters on Tuesday? Duncan wants to target the Muslim community, which accounts for less than 1 percent of the state’s 3.15 million residents, because he suspects they might do something sneaky.
Duncan has acknowledged that there is no “creeping Sharia” in Oklahoma and it’s not used by the state’s courts, but he apparently sees it everywhere else and wants to protect Oklahomans.
The amendment to the state’s constitution, called State Question 755, should have no direct impact on Muslims. The amendment bans Oklahoma’s courts from using Sharia, but says nothing about using Sharia in private arbitration. I don’t even know if Oklahoma Muslims use Sharia to settle domestic and civil disputes. But if they do, the new law can’t touch them as long as Sharia rulings are not challenged in court.
I’m no legal expert, but it stands to reason State Question 755 is ripe for legal challenges on constitutional grounds. Indeed, the Council on American-Islamic Relations (CAIR) weighed in on Thursday by announcing it will file a lawsuit in Oklahoma challenging the law’s constitutionality. The law also is discriminatory. If a domestic or civil dispute arbitrated by a Sharia panel is challenged, an Oklahoma court can’t consider the Sharia ruling. However, the courts can still consider private administrative hearings and Beth Din, which follows similar guidelines as Sharia by the Jewish community. Using Sharia as private arbitration, like Beth Din, is a form of Alternative Dispute Resolution, which is accepted and encouraged by most state courts.
Although the anti-Sharia aspect of the amendment gets all the attention, what apparently flew under the voters’ radar is that Oklahoma’s courts also can’t use international law when deliberating cases. This has a more far-reaching impact on the state’s judicial system. For all of Duncan’s proclamations that America must keep its values and rely on the rule of law forged by the founding fathers, he seems to be unaware that U.S. courts have used international law in deciding cases for more than 200 years.
Although the U.S. Supreme Court can’t make up its mind whether considering international law is appropriate, all state courts rely on it from time to time. Not only are Oklahoma’s courts now hamstrung in applying international law, the courts may also find they can’t use the Alien Tort Statute. The statute gives U.S. courts jurisdiction in civil cases brought by non-U.S. citizens against individuals for violating international law or treaties with the United States. If individuals commit human rights violations, their victims can sue them in U.S. courts. Except perhaps in Oklahoma.
While CAIR and the state of Oklahoma prepare to wrestle with these issues, one must wonder how Oklahoma took this road.
Ducan’s “pre-emptive” argument doesn’t stand scrutiny. Just who is advocating that Sharia be implemented in the United States? Other than the Taliban, Al-Qaeda and the occasional kooky European imam, there is not a single reputable Islamic scholar in the U.S. who has publicly advocated for Sharia to be the law of the land.
Duncan, however, has taken his lead from Brigitte Gabriel, the founder of ACT! for America, an anti-Muslim organization that spreads the word that Sharia is just around the corner. In an interview with the conservative Christian website OneNewsNow, Gabriel said, "There is actually a huge pocket of terrorist organizations operating out of Oklahoma. I know this because I work with members of the FBI who are in counter-terrorism and who are paying attention to what's happening in Oklahoma. What we are seeing right now, not only in Oklahoma, but nationwide where there is a large concentration of Muslim population, (there are) more demands and more push for Sharia law."
Gabriel doesn’t disclose where these terrorist organizations are operating, although I’m sure Oklahoma law authorities would like to know. She also doesn’t say which Muslims are demanding Sharia. I don’t know what the FBI is doing about terrorists in Oklahoma, but I can tell you what is not happening with Sharia. Women asking for private swimming times at a public pool are not pushing Sharia. They want privacy. Asking for a separate exercise schedule or private space at the local gym is not Sharia. It’s a question of modesty. Asking the local KFC for halal chicken is not Sharia. It’s a request for an alternative way to prepare food that does not impact other methods of food preparation. Asking for time to pray at work is not Sharia. It’s called religious accommodation, guaranteed by the 1964 Civil Rights Act as long as it does not adversely affect the operation of the employer’s business.
Operators of public swimming pools, local gyms and restaurants have the right to say “no.” Employers have the right to say “no” if prayer affects the operation of their business. By the same token, American Muslims have the right to sue.
It’s the great American way.