June 14, 2010 -- Oklahoma is poised to become the first state in the nation to ban state judges from relying on Islamic law known as Sharia when deciding cases.
The ban is a cornerstone of a "Save our State" amendment to the Oklahoma constitution that was recently approved by the Legislature.
The amendment -- which also would forbid judges from using international laws as a basis for decisions -- will now be put before Oklahoma's voters in November. Approval is expected.
Oklahoma has few Muslims – only 30,000 out of a population of 3.7 million. The prospect of sharia being applied there seems remote. But a chief architect of the measure, Republican State Rep. Rex Duncan, calls the proposed ban a necessary "preemptive strike" against Islamic law coming to the state.
"I see this in the future somewhere in America," Duncan, who chairs the state House Judiciary Committee, told ABC News. "It's not an imminent threat in Oklahoma yet, but it's a storm on the horizon in other states."
Sharia – which means "path" in Arabic – governs many aspects of Muslim life and influences the legal code in a majority of Muslim countries.
There are many interpretations of what Sharia means, but in some countries strict interpretations "are used to justify cruel punishments such an amputation and stoning as well as unequal treatment of women in inheritance, dress and independence," according to the Council on Foreign Relations.
Sharia has gained a toehold in some western countries, notably Great Britain, where five sharia courts have been established to settle certain disputes among Muslims, with the government's blessing.
The proposed Oklahoma amendment is aimed, in part, at "cases of first impression," legal disputes in which there is no law or precedent to resolve the matter at hand.
In such cases, judges might look to laws or rulings in other jurisdictions for guidance. The proposed amendment would block judges in Oklahoma courts from drawing on sharia, or the laws of other nations, in such decisions.
The amendment also is a response to what some conservatives see as a pernicious trend -- cases of liberal judges mostly notably Supreme Court Justice Ruth Bader Ginsberg, using foreign laws to shape their opinions in U.S. cases.
"It should not matter what France might do, what Great Britain might do, or what the Kingdom of Saudi Arabia might do," Duncan said. "Court decisions ought to be based on federal law, or state law."
Oklahoma Law May Not Be Constitutional
Legal experts contacted by ABC News said they did not know of one instance of a judge in the U.S. invoking sharia in rendering a decision.
"Cases of first impression are rare," said Jim Cohen, a professor at the Fordham University School of Law in New York City, adding, "I have never heard of a case" involving sharia.
Cohen added that he questions whether the proposed amendment would pass constitutional muster.
"Our federal system and our state system is in part governed by the concept of separation of powers. It's far from clear that the Oklahoma legislature can restrict what a separate branch of government can consider in terms of doing its job – in this case, deciding cases," he said.
"I think this is a political statement against Muslims and, inferentially, in support of United States values," Cohen said.
Duncan said that is not the case. "The only entities that could oppose this measure are those that admittedly support applying international law and sharia law in American courts. If that's what they think they need to be bold enough to say so."