In Oklahoma Case, Another Legal Obstacle to Banning Sharia Law

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Anti-Islamic measures, a big hit on the campaign trail, are getting trounced in the courtroom.

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The 10th U.S. Circuit Court of Appeals, not generally known for its progressive bent, on Tuesday affirmed a lower court ruling that had prevented Oklahoma's so-called "sharia ban" from taking effect. The 37-page decision by the three-judge panel was unanimous and useful in providing some early context about the nature of these laws and the trouble they are likely to find when they bump up against the First Amendment's religion clauses.

The case is still in a procedural phase; the 10th Circuit merely affirmed that a federal trial judge in Oklahoma had not abused her discretion in November 2010 when she issued a preliminary injunction banning Oklahoma officials from activating into law State Question 755. That's the ballot initiative from the 2010 election, approved overwhelmingly by  Oklahoma voters, that purports to forbid Oklahoma's courts from recognizing international law -- especially sharia law. Here is its language:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

Shall the proposal be approved?

The measured passed by a margin of 70.1 percent to 29.9 percent -- a clear expression of popular will. Except that popular will often cannot trump the guarantees of the Bill of Rights' still-viable wall between church and state. U.S. District Judge Vicki Miles-LaGrange, the trial judge who took testimony in the case, had this to say about Oklahoma's effort when it first came before her in 2010:

[T]he Court finds that plaintiff has made a strong showing that State Question 755's amendment's primary effect inhibits religion and that the amendment fosters an excessive government entanglement with religion. While defendants contend that the amendment is merely a choice of law provision that bans state courts from applying the law of other nations and cultures, regardless of what faith they may be based on, if any, the actual language of the amendment reasonably, and perhaps more reasonably, may be viewed as specifically singling out Sharia Law, conveying a message of disapproval of plaintiff's faith...

Furthermore, plaintiff has presented testimony that "Sharia Law" is not actually "law", but is religious traditions that provide guidance to plaintiff and other Muslims regarding the exercise of their faith. Plaintiff has presented testimony that the obligations that "Sharia Law" imposes are not legal obligations but are obligations of a personal and private nature dictated by faith. Plaintiff also testified that "Sharia Law" differs depending on the country in which the individual Muslim resides... Based upon this testimony, the Court finds that plaintiff has shown "Sharia Law" lacks a legal character, and, thus, plaintiff's religious traditions and faith are the only non-legal content subject to the judicial exclusion set forth in the amendment.

The 10th Circuit was only a bit more circumspect. First, the judges determined that the case was justiciable; the plaintiff had standing to challenge the measure. "The harm alleged by Mr. [Muneer] Awad stems from a constitutional directive of exclusion and disfavored treatment of a particular religious legal tradition," the judges wrote, in part because "Mr. Awad alleges that the amendment condemns his religion and prohibits him from relying on his religion's legal precepts in Oklahoma courts, while not prohibiting people of all other faiths to rely on the legal precepts of their religions."

Next, the 10th Circuit determined that Awad would likely win his case on the merits because Supreme Court precedent, albeit murky, still prohibits government from discriminating among religions. That State Question 755 has such a discriminatory effect was clear to the judges. Of the measure, they wrote:

This language prohibits Oklahoma courts from upholding and adhering to laws of other states that include Sharia law but does not prohibit Oklahoma courts from upholding and adhering to laws of other states that include the laws of any other religion. On this basis alone, application of Larson strict scrutiny is warranted.

The "Larson" to which the judges referred is the 1982 Supreme Court case Larson v. Valente. And the "strict scrutiny" reference refers to the heightened legal standard the 10th Circuit applied in evaluating the constitutional of State Question 755. The judges wrote:

The amendment bans only one form of religious law -- Sharia law. Even if we accept Appellants' argument that we should interpret "cultures" to include "religions," the text does not ban all religious laws. The word "other" in the amendment modifies both "nations" and "cultures." Therefore, if we substituted the word "religions" for "cultures," the amendment would prohibit Oklahoma courts from "look[ing] to the legal precepts of other... religions." The word "other" implies that whatever religions the legislature considered to be part of domestic or Oklahoma culture would not have their legal precepts prohibited from consideration, while all others would. Thus, the second portion of the amendment that mentions Sharia law also discriminates among religions.

Then the judges determined that the measure did not remotely address a "compelling interest" on the part of Oklahoma, which is another part of the constitutional test which judges must apply in these sorts of cases. They wrote:

Oklahoma's asserted interest is a valid state concern. But this general statement alone is not sufficient to establish a compelling interest for purposes of this case. Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. Vol. 1 at 67-68. Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support a compelling interest (emphasis added).

In other words, when there's no reason for a law, there's certainly no compelling reason for it. Finally, from the 10th Circuit, a little lesson in the majesty of the Bill of Rights. The panel, comprised of two Democratic appointees and one appointee of George W. Bush, wrote:

Appellants argue that the balance weighs in their favor because Oklahoma voters have a strong interest in having their politically expressed will enacted, a will manifested by a large margin at the polls. But when the law that voters wish to enact is likely unconstitutional, their interests do not outweigh Mr. Awad's in having his constitutional rights protected.

We will likely see an appeal of this decision. And the Supreme Court seems eager this term to handle all sorts of sensitive political cases. But State Question 755 looks to be headed toward the scrap heap of legal history, along with other dubious laws and measures that sought to solve problems that didn't exist by unlawfully classifying citizens by their religious or political beliefs. Sharia law bans may still be a big hit on the campaign trail. But in court they are getting trounced.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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