Back in November 2010, Oklahoma voters utilized a ballot initiative in an attempt to ban courts in their state from considering and applying Islamic law. Though such action might seem absurd, 70% of Oklahoma’s voted in its favor. Not surprisingly, Muslim groups wasted no time in challenging the state’s constitutional amendment in court. After a federal judge issued an injunction against the amendment, state officials filed an appeal with the 10th Circuit.
Although the Oklahoma law is getting much publicity, a number of other states have actually considered similar measures. In a recent example, a Texas state representative proposed an amendment to his state’s constitution that would prevent courts from applying any “religious or cultural law.” (Click here for the story, and here for the text of the amendment.) The language of this bill would undoubtedly include Jewish law.
If passed, the Texas law would prevent courts from enforcing a provision in a will or trust that refers to Jewish law, a shtar heter iska (a document that ensures compliance with the Torah laws of usury), or a ketubah (a document that delineates a husband’s obligations to his wife in accordance with halacha). A number of courts nationwide have in fact ruled on such issues. See, e.g., Gordon v. Gordon, 332 Mass. 197 (1955) (analyzing a will that disinherited children marrying outside of the Jewish faith); Bollag v. Dresdner, 495 N.Y.S.2d 560 (N.Y. City Civ. Ct. 1985) (refusing to award interest because the parties executed a heter iska); Minkin v. Minkin, 180 N.J. Super. 260 (1981) (specifically enforcing the terms of a ketuba). For more examples of American courts citing Jewish law as authority, see Daniel G. Ashburn, Appealing to a Higher Authority?: Jewish Law in American Judicial Opinions, 71 U. Det. Mercy L. Rev. 295 (1994).
Thus, a law prohibiting courts from applying religious law would impair the legal rights of observant Jews and other religious groups. Can Texas do that? The outcome of the Oklahoma case will likely answer this question, and so far, it looks like such laws will be viewed as unconstitutional.