More on Why a Yes Vote on SQ755 is Irresponsible

There are examples of where judgments were appealed all the way to the Oklahoma Supreme Court because a judgment cannot be enforced without jurisdiction, specifically Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, 796 P.2d 276.

In this case, Brazilian law was to apply in an agreement which had been breached and was being litigated in Oklahoma. There are many precedents, both at the State and Federal levels, to recognize foreign law in civil contract disputes. The protection against applying foreign law that is contrary to American concepts is Due Process through comity according to Hilton v. Guyot, 159 U.S. 113 (1895).

It seems that a common argument that I hear is that the current way of resolving disputes and enforcing judgments is to apply the laws of the court where the litigation is currently taking place. This is a complete misconception and shows a complete lack of understanding of choice of law.

According to 15 O.S. § 162:

A contract is to be interpreted according to the law and usage of the place where it is to be performed, or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.

This means that place of performance is controlling when it exists, and the place the contract was made is controlling otherwise, regardless of if it is foreign or domestic. In the Panama example that I often cite, the contract was to be performed in Brazil, and therefore under lex loci solutionis Brazilian law applied.

Additionally, 12 O.S. § 718.1 - 12 O.S. § 729.16 are the statutes that spell out what criteria must be met in order for an Oklahoma court to enforce a foreign judgment. A court can only enforce a judgment where it has jurisdiction, and under SQ755 an Oklahoma court would not have the ability to enforce a judgment where it has jurisdiction because it would not be allowed to reference the international law where it was determined that a judgment was against an Oklahoma party. This is what would make it very unattractive to do business internationally with an Oklahoma company.

By passing SQ755, statutes that are meant to protect or enhance the ability of Oklahoma businesses to enter into international agreements would be effectively unenforceable due to being unconstitutional.

I agree with the intent of SQ755, but I cannot support something that reaches so broadly. The intent was to stop Sharia Law from being used as a defense in Oklahoma courts.

However, how does it do anything for other cultural defenses¹?

For example, in New York, a Chinese immigrant beat his wife to death with a claw hammer because he suspected her of having an affair in People v. Chen, No. 87-7774 (N.Y. Sup. Ct. Mar. 21, 1989). The charge was reduced from second degree murder to second degree manslaughter after the court heard testimony from Professor Burton Pasternak of Hunter College that the Chinese condemn adultery and therefore his actions were acceptable, but reckless. He got probation.

In California, a Laotian man was charged with kidnapping and rape for performing the traditional Hmong ritual of bride capture. In this ritual, a man is supposed to capture who he believes he is to marry, take her to his family home, and the consummate the marriage. The bride is supposed to resist as a sign of being virtuous, but in this case that resistance included filing charges of kidnapping and rape in People v. Moua, No. 315972-0 (Cal. Super. Ct. Fresno County Feb. 7, 1985). Because this was a traditional ritual according to the court, the charges were reduced to false imprisonment for a sentence of 120 days in jail.

Also in California, in People v. Kimura, No. A-091133 (Cal. Super. Ct. L.A. County Nov. 21, 1985), a woman, upon hearing of her husband's infidelity, walked into the ocean holding her two children. Her children drowned, but she failed at drowning herself. With her defense that she was performing the ancient Japanese ritual of oya-ko shinju (parent-child suicide), her murder charge was reduced to manslaughter and she walked out of the courtroom a free woman because she had already served her one year in jail.

In my opinion, by addressing Sharia Law specifically and not addressing cultural defenses at all, SQ755 is too narrow in scope in this area. I can almost guarantee that there will be costly First Amendment litigation against it because it explicitly cites Sharia Law. A measure which prohibits the application of cultural defenses in Oklahoma courts would be much more appropriate as it would do what this measure is intended to do and more.

The way I see it, the responsible thing to do would be to wait for a measure which is worded much better on the next ballot that covers all cultural defenses and does not impair the ability of Oklahoma courts to recognize international law where it is due. The responsible thing to do would be to vote NO on SQ755.

¹Neal A. Gordon, The Implication of Memetics for the Cultural Defense, 50 Duke L. J. 1809 (2001)