I commented back in November about Oklahoma’s so-called “Save Our State” constitutional amendment, which would bar the Oklahoma courts from applying Sharia law and international law. I asked: “What can we, as lawyers with an interest in private international law, do to roll back this disturbing trend?”
One ready answer is “Bring lawsuits!” And as the Tenth Circuit’s decision in Awad v. Ziriax shows, that’s a pretty good answer. In Awad, the court affirmed an injunction preventing the state Board of Elections from certifying the result of the election, in which 70% of Oklahoma’s voters approved the amendment. The statute, which called out Sharia law without similarly naming, say, canon law or halacha, and was plainly unconstitutional under the First Amendment.
But while Awad is a good and obvious outcome, it hardly solves the problem. The Oklahoma statute is particularly egregious, but suppose the statute had forbidden the courts from applying international law, or the law of another country, without barring the courts from applying religious law. There would, then, be no obvious Establishment Clause or Free Exercise Clause problem, yet the measure would still be deeply problematic. So the question remains: how to deal with the wave of know-nothingism, nativism, Islamophobia, and just plain dumbness that motivates these law and constitutional amendments around the country.