In Oklahoma Case, Another Legal Obstacle to Banning Sharia Law

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."

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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