Assessing the Viability of State International Law Prohibitions
Prasatik, Sara, Houston Journal of International Law
I. INTRODUCTION II. ISLAM, SHARIA AND NATIONAL SECURITY A. Grassroots Islamophobia? B. The Threat Assessment: Possible Inroads for Sharia Law C. Constitutional History and Precedent D. Treaties: Self-executing, Non-self-executing E. The Status of CIL within American Jurisprudence. III. THE STATES AND CIL A. CIL as Federal Law B. The Revisionists: CIL is not federal law IV. ASSESSING THE STATE PROHIBITIONS A. Other Potential Constitutional Issues V. CONCLUSION
In 2011, state legislatures considered forty-nine proposals and state constitutional amendments that related to or explicitly prohibited state incorporation of international law. (1) Some, like the Oklahoma "Save our State" constitutional amendment, explicitly prohibit courts from referencing or incorporating Sharia law. (2) Rooted in a national anti-Islamic movement, (3) the Oklahoma amendment reflects a concerted effort to prevent Islamic influence within state courts and legislatures. (4) Laboring under the guise of protecting the U.S. Constitution and preventing future terrorist attacks, the singling-out of Islam has been described as plain bigotry. (5) Moderate Islamic groups, along with the American Civil Liberties Union brought a First Amendment suit against the State of Oklahoma. (6) Arguments from both sides stressed the principles of religious freedom and the protection of First Amendment constitutional rights; (7) however, it remains to be seen whether the Oklahoma amendment and like measures comport with the U.S. Constitution. (8) The Tenth Circuit's decision regarding the amendment's free exercise provisions provides some framework from which one may assess the viability of similar state legislative efforts. (9) To date, Arizona, Kansas, Louisiana, South Dakota, and Tennessee have approved Sharia law prohibitions. (10) The remaining efforts, some which are likely to be reintroduced in the 2012-2013 legislative session, provide for a blanket exclusion of international law (11) that likely conflicts with the Supremacy Clause of the U.S. Constitution.
While the specific anti-Sharia provisions of the Oklahoma amendment garner rightful First Amendment challenges, there remain other significant constitutional concerns. (12) Specifically, if the Sharia provision may be severed from the remainder of the Oklahoma amendment, (13) there exist questions regarding the amendment's exclusion of "legal precepts of other nations or cultures." (14) This portion of the Oklahoma amendment more closely mirrors the majority of state legislative proposals that can be characterized as blanket prohibitions on the state court's ability to reference or rely upon international law and customs of foreign nations. (15) The more general international law prohibitions may substantively conflict with the Supremacy Clause of the U.S. Constitution. The clause states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (16)
Whether these blanket provisions would actually prevent incorporation of or reference to Sharia and international law turns upon whether customary international law is federal law. (17) The central analysis is whether the Supremacy Clause permits the several states to exclude international, and presumably, Sharia law. (18) This Comment identifies common language among the state proposals, and then assesses whether these state international law prohibitions have any teeth. Further, with the Supremacy Clause in mind, federal case law regarding incorporation of international law generally is explored in the context of three views on the status of customary international law (CIL) within the United States. …