Search for Sharia Law on the Internet and you will find shocking pictures women disfigured, people being stoned, or beheaded, child brides and more, all practices followed or condoned in some Islamic countries. That is the kind of thing Oklahoma lawmakers and voters said they did not want when they approved an amendment to the state constitution banning the use of Sharia Law in state courts there. State lawmaker Rex Duncan pointed out the key provision in an interview with Sean Hannity, "Prohibiting all state courts from using or considering international law or Sharia Law."
But James Weinstein, a professor of Constitutional Law at Arizona State University's Sandra Day O'Connor College of Law, said that wording is what led to problems.
"The law discriminates against one type of religion," he said.
It specifically says Sharia Law.
The 10th Circuit Court recently struck down the Oklahoma law, saying it violated religious freedom. Weinstein said the law had a number of constitutional conflicts.
"The court relied on the Establishment Clause, which seems on first glance to be an unusual way to address a case like this because how are you establishing a religion, as a matter of fact, you are almost doing the opposite," Weinstein said.
"But the court has long held that favoring a religion or discriminating against a religion can violate Establishment Clause principals," he continued. "They could have also done it on free exercise grounds. There is a case that says if you discriminate against a religion you violate the free exercise clause. Or they could have done it under the equal protection clause, and said if you discriminate against a religion you’re are violating the equal protection guarantee of the 14th Amendment. It is one of these situations where it is an easy case because so many provisions of the constitution coalese to say uh-uh."
So what about those scenes of beheadings or stonings? Are they now allowed under religious freedom?
Weinstein said first of all Sharia Law would not apply to criminal cases, which are detailed in state and federal statutes.
"It wouldn't be under criminal law, that is exclusive under Oklahoma law and federal law," he said.
And what about punishments like beheadings or hands being chopped off? Weinstein said we won't see that either.
"And if something obnoxious like that came in, you wouldn’t even need to appeal to the U.S. Constitution," he said. "Yes, it would be a violation of the Eighth Amendment, cruel and unusual punishment, to put someone’s eye out or cut someone’s hand off, but you wouldn’t even get there because the court would say it violates public policy."
It is that idea of public policy that that would hold sway, in cases where Sharia Law would most likely come into play, civil matters, said Weinstein. "There is an ancient rule in this country and in most civilized countries that courts will not enforce private agreements that are against public policy."
And in fact it is against public policy, and the criminal law for that matter, to put out eyes, beat your spouse or commit an honor killing. A defendant could try to use Sharia Law as a defense, but in rare cases where that has been tried, it has been unsuccessful.
The most likely area where Sharia Law would enter a court is in cases of arbitration, wills or distribution of property. And, in fact both, Jewish and Canon or Catholic law have come into play in such cases, in the past, said Weinstein. "There would be nothing wrong with looking to a religious precept to resolve a private contract. "
He adds, states could try to outlaw any type of religious law to stop that, but what they cannot do is single out just one.
"And Islamic law has some aspects that some people find very troubling, but that is not the way to do it by pointing the finger at entire Sharia Law," he said.
Another problem for state officials in Oklahoma, they could name no case where Sharia Law had ever been cited or used in courts there.