In Sharia Law Ban, Oklahoma Juggles Dynamite

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Living in a state with popular initiatives and referendums is like living next door to a family of meth dealers who come out every couple of years and point guns at your house: The good news is that about half the time they don't shoot. The bad news is ...well, you do the math.

The voters of Oklahoma pulled the trigger on election day when, at the behest of the Republican majority in their legislature, they approved State Question No. 755, the "Save Our State Amendment" to the Oklahoma Constitution.

State Question No. 755 boldly guarantees that no matter what happens, Oklahomans will be in no danger of being dragged before the Grand Mufti of Muskogee to stand trial on charges of defaming the Prophet Muhammad. But it forestalls this unlikely danger at a cost. The costs include, in ascending order of importance, (1) subjecting the state to an expensive lawsuit it deserves to and almost certainly will lose; (2) deforming the Oklahoma Constitution by silently repealing the Supremacy Clause of the United States Constitution; and (3) loosing what James Madison once called "that diabolical hell conceived principle of persecution."

Question No. 755 provides that Oklahoma courts "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 and if necessary the law of another state." However, the courts "shall not look to the legal precepts of other nations or cultures . . . international law or Sharia law."

Who could be against that? Certainly not ordinary Oklahoma voters who take a break from their busy lives to vote and find themselves confronted with the question of whether Muslims should take over the state courts. That "no" vote is literally a no-brainer for anyone who hasn't got time or training to think through the background and implications.

Last week, a federal court in Oklahoma issued a preliminary injunction barring the state from certifying 755 as part of its constitution. In its preliminary order, the court noted that it seems likely that Question 755 violates both Religion Clauses of the First Amendment. It violates the prohibition against "establishment of religion" because the amendment has no purpose other than "inhibit[ing]" the Muslim religion and leads to "government entanglement with religion." It violates "the free exercise" of religion because it discriminates on its face "against a specific religious belief."

Of course, the case would come out differently if the First Commandment ("Thou shalt have no other gods before me.") were in the Constitution. But it isn't, and barring a sudden imposition of the Mosaic code on the entire nation, the court's preliminary decision is unlikely to be overturned.

Does anyone doubt that the main purpose of the "Sharia law" provision is simply to put into the state constitution a message addressed to Muslims in the age-old language of heartland communities: "We don't like your kind around here. Vamoose!"

The only justification for such a radical measure would be an imminent danger to the state. Is Oklahoma likely to be flooded soon with bloody-minded imams brandishing fatwas and scimitars? Not hardly.

Proponents of 755 say the danger really is imminent. They point to a New Jersey case called S.D. v. M.J.R. In that case, a trial judge refused to issue a restraining order against a Moroccan husband who had repeatedly raped his wife. The judge decided that the man "was operating under his belief that it is, as the husband, his desire to have sex when and whether we wanted to, was something that was consistent with his practices." Thus, the husband lacked "criminal intent."

The Appellate Division of the New Jersey Superior Court reversed the decision. It applied Supreme Court precedents showing that religious belief of any kind does not excuse a defendant from obeying "neutral, generally applicable" laws. The court said that the trial judge "determined to except defendant from the operation of the State's statutes as the result of his religious beliefs. In doing so, the judge was mistaken." Case closed.

So here's the danger: a boneheaded decision by a local judge in another state, which was reversed exactly the way it should have been--by the appellate court. Hardly a mortal threat to the nation--and nothing less would justify suspending the Constitution's guarantees of religious freedom.

All that is bad enough. But the discussion of Sharia law in 755 overshadows another flaw. The measure's definition of the permissible sources of law in Oklahoma courts directly conflicts with Article VI, § 2 of the United States Constitution, which provides that "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." The Clause then adds, "judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."

Treaties are international law. They are also "the supreme law of the land." But they are pointedly omitted from the permissible sources of law in 755. So 755 orders state judges to ignore them. On the most basic level, would this mean that a judge is violating state law if he considers a claim or defense of a party under a treaty to which the United States is a party?

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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