Why I Am Voting NO on State Question 755

This is my ninth installment in a series on how I am voting on the 11 State Questions on the ballot November 2nd. This is not intended to tell you how to vote, but rather to give my opinion as you research these issues in order for you to make an informed decision for yourself prior to entering the ballot box.

State Question 755 is perhaps the most misunderstood measure appearing on the ballot. It is a very poorly written measure that panders to popular xenophobia against Islam and was devised as a posturing tool for the politicians who supported it. It is not what it seems on the surface.

Supporters of State Question 755 only seem to focus on one thing: it prevents the use of Sharia Law in Oklahoma courts. And they are right. But they seem to forget to consider that the measure prohibits the application of any international law in Oklahoma courts.

Of course, when confronted about that issue, the typical response is what you expect from someone who prefers to vote based on irrational fears rather than rational decision-making: "But it stops Sharia Law!" What this tells me is that the voter does not care to understand what they are actually voting for, they only react to a specific keyword which, in this case, happens to be "Sharia".

Here is what you will see on the ballot:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

Shall the proposal be approved?
For the proposal
Yes: __________
Against the proposal
No: __________

And here is the actual addition to the Oklahoma Constitution:

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

As one would expect, most people will read through the ballot title and see the words "Sharia Law" and automatically choose to cast a "yes" vote. However, since you are reading my blog, I assume you are wanting to be a little more informed about what you are voting for.

What most people do not realize about this measure is found in two sentences. "The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law."

The first requires an understanding of what a legal precept is. A legal precept is "a general rule intended to regulate behavior or thought", such as the legal precept of innocent until proven guilty. By not allowing our courts to consider the legal precepts of other nations or cultures in (increasingly) rare cases of first impression, we are limiting the ability of our judges to consider what might be right in a situation that has not been legally challenged before our system.

However, the prohibition of any international law is what I think that most people will be able to relate to, but ultimately misunderstand.

When a business chooses to enter into a contract with a foreign entity, they currently have the option to choose to have the laws of the other party's country be used to interpret the contract. By prohibiting the use of international law in Oklahoma courts, those contracts where the venue was set as Oklahoma as part of the contract negotiations would be unenforceable. For a prime example of where the Oklahoma Supreme Court has had to apply foreign law in a civil case, see Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, 796 P.2d 276.

Additionally, by not allowing the use of international law in Oklahoma courts, if a foreign company were to sue a company in Oklahoma for breach of contract, they would be unable to collect on a judgement because Oklahoma courts could not use the laws governing the contract or the foreign case resulting in the judgement to enforce a judgement. This will make Oklahoma businesses very unattractive prospects to foreign businesses as both consumers and suppliers.

This is why I believe that SQ755 was born out of political posturing rather than what is in the best interests of Oklahoma. Generally, Republicans are very pro-business, but this measure has very anti-business implications. What this measure does is pander to popular xenophobia in an attempt to increase the political stock of those who support it. In my opinion, those who voted against it in the legislature were the only ones who actually thought about whether or not what they were voting on was good for Oklahoma.

Usually when I bring this up to someone in person that sees my point, the defense is "We'll fix it later, but we have to stop Sharia Law now!" Those who think that way obviously do not understand how business works. A business cannot afford to sit around a wait for two years or more in hopes that a measure that is hurting their business is fixed — a smart businessman will move their business and their jobs elsewhere. I don't think that's what Oklahomans really want.

Additionally, SQ755 would render the 12 O.S. § 718.1 - 12 O.S. § 729.16 (statutes that deal with enforcing foreign judgments) effectively unconstitutional. It should be noted that the Uniform Foreign-Country Money Judgments Recognition Act (12 O.S. § 718.1 - 12 O.S. § 718.12) is basically an update of the Uniform Foreign Money-Judgments Recognition Act that was referenced in Panama and other cases. It is also quite ironic that the same legislature which passed the Uniform Foreign-Country Money Judgments Recognition Act has also pushed the measure that would make it unconstitutional.

Finally, a point needs to be made about the potential impact on people who chose to have their weddings performed overseas or who were married prior to becoming citizens of the United States. Currently, I understand that a court is supposed to use the laws of the location where the wedding took place to determine whether or not a marriage is legitimate prior to dissolution or other legal action. With the passage of SQ755, people who chose to have an exotic wedding in a foreign location may not be considered legally married according to Oklahoma courts.

Of course, there are those that will try to argue that this would be a good way to cut down on the divorce rate. After all, if they aren't considered legally married, they can't get a divorce. (And yes, I have heard that argument on multiple occasions.) I think that those who make that kind of argument really need to have their head examined to make sure there is still an object in place between their ears.

If SQ755 passes, I'm sure that the specific reference to Sharia Law will trigger First Amendment litigation because it specifically target a single religion and will most surely be struck down. This is another reason why I think this measure was poorly written. As I have said before, I do not support the application of Sharia Law in American courts.

This measure should have been crafted in such a way to prohibit "cultural defenses" in Oklahoma courts. A cultural defense is where the defendant asserts that he was in the right because his culture permits (and may even encourage) certain acts. Prohibiting cultural defenses broadly, rather than specifying Sharia Law, would have had the same net effect as intended, but might have been more difficult for voters to understand.

Because State Question 755 is a poorly written measure that has broader negative ramifications than what appears on the surface, I am voting NO on State Question 755. Anyone who votes "yes" on it is actively participating in limiting the ability of the Oklahoma legal system to protect the people of Oklahoma.