- The Washington Times - Wednesday, January 11, 2012

A panel of federal judges has ruled that states cannot protect their courts from jurists who base their decisions on international or Koranic law. America needs better judges.

On Tuesday, the 10th Circuit Court of Appeals upheld a federal district court order blocking implementation of an amendment to the Oklahoma constitution that sought to ban judges from using international or Muslim law as a basis for deciding cases. The amendment was approved in November 2010 by a 70 percent popular vote but has never been enforced. Plaintiff Muneer Awad, executive director of the Oklahoma branch of the Council on American-Islamic Relations (CAIR), argued that the amendment infringed on his First Amendment rights. The appeals court agreed.

It should be obvious that judges shouldn’t look outside the laws and traditions of their jurisdictions when deciding cases, but in the liberal judicial-activist framework, anything goes. Whether it’s the latest thinking from the United Nations or Muslim activists, the currently fashionable, best-selling dogma of social science or simply random emanations of penumbrae, the modern activist jurist doesn’t feel bound by stuffy conventions like a literal reading of the law, the intent of the legislature that passed it or the hoary old hand of precedent. Indeed, judicial activists only value precedent when they read a novel doctrine into case law and then demand it be given reverence by all who follow.

The Oklahoma amendment took specific aim at two of the latest fads being discussed in legal circles, and that was the problem. The amendment stated that courts “shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Shariah law.” Specifically noting Koran-based law gave Muslim activists a wedge to take the case to court, claiming they were being unfairly discriminated against. The amendment then fell under strict scrutiny standards that it could have avoided had it not singled out Islam. True, there is no pressing movement to read Catholic canon law into the American legal corpus or to insist that all readings of the law be “Mosaic compliant,” but focusing on Islam was a tactical error, calling attention to the obvious.

The appeals court addressed this matter as an establishment clause case. The decision notes that Mr. Awad had standing to sue because he “suffers a form of ‘personal and unwelcome contact’ with an amendment to the Oklahoma Constitution that would target his religion for disfavored treatment.” This is ironic because proponents of basing American legal decisions on the Koran seek a form of favorable bias that the Oklahoma amendment sought to forestall. Mixed-up thinking on this issue was on display in September 2010 when Supreme Court Associate Justice Stephen G. Breyer mused on “Good Morning America” that the fact that mobs of foreign extremists riot over people burning the Koran should force American jurists to consider limits on free expression in the United States.

It’s a shame it takes a state constitutional amendment to admonish judges to avoid following foreign law, religion or other irrelevancies to guide their opinions. Oklahoma lawmakers need to revisit the amendment in question and rewrite it in a way that can stand scrutiny. It shouldn’t be so difficult to tell judges to do the right thing.

The Washington Times

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