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Why Sharia is Unconstitutional, and why Oklahoma should have left things alone
Oklahoma has decided to amend its Constitution to say that its judges may not consider or use Islamic Shari'a law. A Federal judge has stayed that for the time being.
There are at least four reasons why Shari'a is unconstitutional and should not be used in American courts, this Court could be wrong. First, if a civil court adopts shari'a per se it would be an unconstitutional as an endorsement of religion. I suppose if parties agree to have private arbitrations performed with reference to shari'a, that's their business. A court to be prudent should ascertain whether such an arbitration is voluntary, given the inequities which are inherent in shari'a from our point of view.
Second, and more importantly, when we understand that shari'a is not a matter of religious principles but a total system of life, we realize that shari'a as a system is already unconstitutional regardless of what Oklahoma does. This is because the U.S. Constitution says that the Federal government shall guarantee to each State "a Republican form of government." In other words, the United States will protect each State's government against usurpation by other forms of government which are not republican such as a monarchy, a Commmunist dictatorship - or an Islamic theocracy.
Third, I question whether and to what extent the U.S. government, in the person of a Federal judge, is able to simply draw a big "X" over a State constitutional provision. This should only be done in the clearest of circumstances, and only, in my opinion, where the U.S. Constitution has directly spoken. For example, no State could now amend its State Constitution so as to allow slavery.
Fourth, and least likely to prevail in our current environment, shari'a is against the American tradition which is built on the Christian tradition. As late as 1890 the Supreme Court could recognize that this is a Christian nation - not of course in the sense of having an established Church, but that the vast majority of people are Christian and our nation presupposes a Christian worldview. There is a secular way to uphold these principles if we reflect on the fact that our founding documents assert the values that come from the Protestant tradition - we hold these truths to be self-evident, that all men are created equal and that they endowed by their Creator with certain unalienable rights, etc. Now, the shari'a system of course doesn't recognize this at all since in Islam all men are not intrinsically equal by virtue of their humanity. In Islam, Muslims have more rights than non-Muslims, men more rights than women and so forth.
These four quick answers should be apparent to, at a minimum, any person in the United States who has been to law school. Yet, people do not speak against the political aspect of Islam, expressed through shari'a, because the Left is making common cause with Islam all over the world (a move they may live to regret).
As a side note, and as many have pointed out, doesn't Oklahoma by its Amendment simply uphold the purposes of the First Amendment to the Constitution of the United States? We could actually see Oklahoma's decision to propose such a specific Amendment as foolish because it gives people the opportunity to litigate matters which should never be litigated. It should already be clear because of the First Amendment that the shari'a comprises no part of the law of Oklahoma.
So why put that ball in play, so to speak?
