Judicial Mischief in Oklahoma?

by Ed Whelan

According to AP, federal district judge Vicki Miles-LaGrange today issued a temporary restraining order blocking implementation of Oklahoma’s recently adopted constitutional amendment barring Oklahoma state courts from considering or using international law or shariah law in deciding cases. Specifically, the judge’s TRO prevents the state election board from certifying that the amendment was approved by the voters (with support of 70%).

The judge’s reported order—I haven’t seen the text or any supporting opinion—strikes me as highly dubious. The plaintiff, the executive director of the Council on American-Islamic Relations in Oklahoma, evidently claims that the amendment stigmatizes Islam. It’s true that, among the different existing bodies of religious law, the amendment identifies only shariah law as impermissible. But that, I gather, is because advocates of shariah law make comprehensive claims to supplant civil law that no other body of religious law is seen to threaten.

Among other things, issuance of a TRO would generally require some determination that the plaintiff faces irreparable injury and is likely to succeed on the merits. I don’t see how either prong would likely be satisfied. Further, considerations of federalism ought to make a federal court very hesitant to interfere with a state’s election-certification process.

As I’ve previously indicated, I’m open to the possibility that a categorical bar on the use of international law or shariah law for any purpose might have some improper applications. It’s possible that a particular application of the state constitutional amendment might be preempted by federal law (statute or treaty) or even violate the federal Constitution. But any such claim is best pursued by a party in the context of an independently existing case.

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