Did the Oklahoma Attorney General’s Office Fail to Adequately Defend the Oklahoma Ban on Use of Foreign Law?

As I noted below, the Tenth Circuit U.S. Court of Appeals has upheld the injunction ordering the Oklahoma Secretary of State not to certify the enactment of the Oklahoma anti-foreign-law/anti-Sharia constitutional amendment. But here’s an interesting twist: Though the high-profile part of the amendment banned Oklahoma courts’ use of Sharia law, the amendment more broadly banned the courts from using foreign law:

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

As I mentioned before, this was a very bad idea, for reasons quite unrelated to the Sharia law question: Whatever one may think of the propriety or impropriety of courts using foreign law or international law as a guide in interpreting the U.S. Constitution, foreign law is and should be routinely considered in a wide range of contract, tort, property, and family law cases; see here for some examples.

Still, the voters enacted this prohibition on the use of international law, and that prohibition faces no Establishment Clause problems — it’s only the Sharia Law prohibition that can be seen as violating the Establishment Clause. Moreover, while some provisions are seen as not “severable,” in that the invalidity of one aspect is seen as justifying the invalidation of the whole thing, a provision such as the Sharia Law ban would normally be seen as severable, so that the invalidation of the Sharia Law ban should not lead to the invalidation of the foreign law ban: There would be nothing perverse, from the perspective of the law’s enactors, in retaining the foreign law prohibition even if the Sharia Law prohibition is struck down; that would at least give the law’s supporters some of what they wanted, rather than one of what they wanted. Whether a provision is severable is a matter of state law, and here’s the severability analysis that the Oklahoma Supreme Court seems to use (see Fent v. Contingency Review Bd. (Okla. 2007)):

The severability of a statutory enactment [the matter is generally seen as the same for state constitutional enactments -EV] is not contingent on the presence of an express severability clause within the particular enactment’s text. Survival of untainted statutory provisions that remain is appropriate when the valid and voided (as unconstitutional) provisions are not so “inseparably connected with and so dependent upon” each other that the surviving provisions would not have otherwise been enacted.FN47 Consideration must be given to whether the surviving provisions must rely on the severed portion for meaning or enforcement…. [I]nvalid provisions … are presumed to be severable ….

So why then was the entire amendment blocked by the federal courts, rather than just the Sharia Law provision? I think the district court erred in making such a decision, but apparently on appeal the Oklahoma Attorney General’s office didn’t really press the severability argument:

Appellants raised the issue of severability of the Sharia law portions of the amendment for the first time to this court in post-oral argument supplemental briefing. Their argument consisted of one sentence and cited no authority, stating that if this court decides the Sharia law provisions in the amendment render the amendment invalid, “the court should simply treat the explicatory example as surplusage, and strike it.” Because this issue has not been adequately briefed, we do not address it. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (“It is well-settled that arguments inadequately briefed in the opening brief are waived.” (quotations omitted)).

As I said, I like the result — since I think the foreign law ban is a very bad idea — but the Oklahoma voters seem to disagree, and I would think that the Oklahoma Attorney General’s office should be trying to vindicate the voters’ decision. Here, it looks like they haven’t done that so far, though they could still bring the argument up in the trial court as the litigation goes forward (since right now all that’s happened is that the preliminary injunction has been affirmed). Or am I missing something here?