A better SQ 755? "American Laws for American Courts"

NewsRealBlog has a piece by David Yerushalmi titled "4 Rebuttals to Critics of Oklahoma's Anti-Sharia Law," a defense of the thinking behind the constitutional amendment adopted by an overwhelming majority of Oklahoma voters on November 2 as State Question 755.

Yerushalmi says that SQ 755 was poorly drafted (and explains why in detail), but the purposes of the amendment are legitimate, and he sets out to rebut four claims by critics: (1) that SQ 755 is a response to an irrational fear of something that poses no realistic threat to Oklahomans; (2) that the amendment was "driven only by a fear-mongering anti-Islamic narrative," a "cottage industry of Islamophobia"; (3) that outlawing sharia endangers other religious courts; (4) that "sharia" has no concrete meaning, making a ban meaningless.

Especially valuable is his explanation of the mechanisms by which sharia can become a real threat to American liberties under existing law:

Specifically, there are at least three ways for sharia to find its way into our courts and legal system in ways which would deprive Oklahomans of their federal and state constitutional liberties: comity, choice of law issues, and choice of forum/venue determinations. We will touch upon each of these in brief.

In dealing with comity, Yerushalmi explains why legislative action against sharia matters:

State courts are asked to recognize and enforce foreign judgments and private arbitral awards all of the time. This procedure for recognizing another juridical body's decision as binding is called granting comity to the foreign judgment. For our purposes, a private arbitral award is like a foreign judgment because it does not arise from a state court action.

Granting comity to a foreign judgment is mostly a matter of state law. And, almost all state and federal courts will grant comity unless the recognition of the foreign judgment would violate some important public policy of the state. This doctrine is called the Void As Against Public Policy Rule and has a long and pedigreed history....

Unfortunately, because state legislatures have not been explicit about what their public policy is relative to sharia, the courts and the parties litigating in those courts are left to their own devices to first know what sharia is, and second, to understand that granting a sharia judgment comity is ipso facto offensive to our way of life and the principles underlying our constitutional republic.

And, indeed empirically, we find published judicial opinions which accept comity for sharia-based foreign judgments and arbitral awards. And these published judicial opinions quite obviously only represent the tip of the iceberg since courts render these kinds of judgments all of the time through unpublished orders rather than published opinions.

While there are also published opinions where the courts have rejected the application for comity precisely on the grounds that sharia is offensive to Due Process and Equal Protection, the courts have ended up all over the map precisely because the state legislatures have not taken the time to carefully articulate their respective public policies on the recognition of sharia-based judgments. That the people of Oklahoma have chosen to do so, even if clumsily, is hardly grounds for criticism.

Yerushalmi has drafted a model uniform act called "American Laws for American Courts" and offers a free CLE course (an online, 40-minute, narrated PowerPoint) on the proposal and the problem it seeks to address.

The draft law appears to address the heart of the matter: We don't want the state's police power used to enforce judgments made under any system of law that does not include all the rights, privileges, and liberties guaranteed under our Federal and state constitutions. While waiting for the federal courts to address SQ 755, our Oklahoma legislators should consider passing the American Laws for American Courts act in some form as a substitute if SQ 755 is overturned or a clarification otherwise.