Assessing the viability of state international law prohibitions.

• Author: Prasatik, Sara

1. 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 I. INTRODUCTION

   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. Federal courts may consider the discussed viewpoints, among others, in making their decision about whether state bans on reference or incorporating international law are unconstitutional. (19)

2. ISLAM, SHARIA AND NATIONAL SECURITY

   1. Grassroots Islamophobia? (20)

      The Arab American Institute (AAI), founded by James Zogby, defines Islamophobia as "prejudice against, hatred or irrational fear of Islam and Muslims." (21) According to Zogby and his staff, irrational fear of Islam and Muslims has reached epidemic proportions. (22) Since September 11, 2001, AAI has monitored and reported on increased prejudice and discrimination against Arab Americans. (23) A 2002 poll revealed that almost one in three Arab Americans had "personally experienced" ethnicity-based discrimination and that forty percent of those surveyed knew someone who was the target of discrimination. (24) And, based upon the anti-Islamic rhetoric among state legislatures and 2012 campaign speeches, time has done little to cure American anti-Islamic sentiment. (25) In the last two years, despite the democratic exuberance of the Arab Spring, anti-Islamic rhetoric found its way into the 2012 Republican presidential contest, (26) and spurned U.S. House of Representatives investigations into Islamic terrorist threats. (27)

      Early presidential campaign stump speeches appealed to grassroots anxiety about an impending Islamic "world domination." (28) From 2010 to 2011, legislators in more than half of the state legislatures championed legislation to outlaw reference to or incorporation of Sharia law. (29) Far from being independent state efforts, the anti-Sharia and anti-international law proposals draw from the direction and finances of well-heeled, highly educated lobbyists and attorneys in Washington, D.C. and New York City. (30) These organizations have on their payrolls former U.S. Department of State assistant secretaries, retired military officers, former U.S. Congressmen and post-doctoral researchers from some of the top U.S. universities. (31) Credited as the author of the template legislation "American Laws for American Courts," David Yerushalmi has been attributed as the muscle behind the movement. (32) Based out of Brooklyn, Yerushalmi considers himself an "expert on Islamic law" and insists that the United States is "vulnerable to the encroachment to Islamic law." (33) There are several organizations funneling support toward passage of Yerushalmi's legislation, including the Center for Security Policy, a D.C. based organization that aims to "undermine the ideological foundations of totalitarianism and Islamist extremism with at least as much skill, discipline and tenacity as President Reagan employed against Communism to prevail in the Cold War." (34) In short, these are well-orchestrated efforts to protect against a perceived threat to American law.

   2. The Threat Assessment: Possible Inroads for Sharia Law

      Proponents of anti-Sharia and anti-international law legislation argue that state courts should not enforce Sharia law when such enforcement could "violate the U.S. Constitution." (35) Yerushalmi identifies three concerns regarding Sharia's place in state courts: (1) granting comity to a foreign judgment, (2) choice of law provisions of contracts, and (3) forum and venue determinations for U.S. clients with Islamic contracting partners. (36) In the first circumstance, a state may be in a position to recognize and enforce a decision made under Sharia law that fails to recognize U.S. Constitutional rights and would effectively support regimes that are "al Qaeda-like in the Muslim world," or otherwise militant proponents of religious law. (37) The second worry addresses the scenario wherein a court, based upon a private contracting decision, has to decide whether to enforce a contract stipulating resolution in a foreign jurisdiction. (38)

      In this scenario, the court may have to enforce a judgment of law that is "intrinsically offensive to our way of life and our state and federal constitutions." (39) Lastly, there is the possibility that the doctrine of forum non conveniens would require a state court to dismiss the case and allow it to proceed in a foreign forum, potentially subjecting the American parties to resolve their claims under Sharia law and its less than adequate rights protections. (40) Based upon these concerns, proponents insist that it is well within the province of the states to limit the laws that would compromise its citizens' constitutionally protected rights. (41)

      Not surprisingly, there is a deep divide between Yerushalmi and those who oppose state prohibitions on international law. (42) For instance, briefing parties for Awad v. Ziriax alleged that the Oklahoma amendment violated the First Amendment to the U.S. Constitution. (43) Appellee, Muneer Awad, serves as executive director of the Oklahoma chapter of the Coalition for American Islamic Relations, and is also represented by counsel from the American Civil Liberties Union. (44) Awad, along with those filing amicus briefs, (45) defended Sharia law and argued in a multifarious manner--some suggesting that Sharia is not a uniform system of law (46)--others insisted that Sharia offers the basis for democratic constitutionalism. (47) And in opposition to the Oklahoma "Save our State" amendment, the American Civil Liberties Union and the Council on American-Islamic Relations both argued that Sharia prohibitions infringe upon the U.S. Constitutional right to free exercise of religion. (48)

      On appeal from the United States District Court for the Western District of Oklahoma, the State of Oklahoma argued Awad did not demonstrate sufficient evidence of injury to have standing in federal court, that his claims were not ripe, and that he failed to show that the "Save our State" amendment actually violates the First Amendment Establishment Clause. (49) The state's argument rests upon the assumption that Oklahoma citizens have the right to forbid certain sources of law from the state courts. (50) The...