By Scott R. Grubman
November 2, 2010 was an election day to remember for many reasons, although perhaps a day most Democrats would love to forget. Throughout the country, voters went to the polls not only to vote for the politician of their choice (or, perhaps more likely, against the incumbent), but to decide some of the most important social issues of our time. Voters in Arizona, for instance, approved a ballot initiative to amend the state constitution to ban affirmative action programs in state government agencies. Arizona voters were joined by Oklahoma voters in prohibiting mandatory participation in the new federal health care system, often referred to as “Obamacare.” Voters in California rejected a ballot initiative which would have decriminalized possession of small amounts of marijuana, while Arizona voters approved legalization of marijuana for medicinal purposes. And voters in Arkansas, South Carolina and Tennessee all voted to add the right to hunt and fish to their respective state constitutions.
But Obamacare was not the only thing that Oklahoma voters spoke up against in 2010. They also overwhelming approved a state constitutional amendment prohibiting state courts from considering Sharia law (or the sacred law of Islam)—as well as international law—when making rulings. The ballot measure passed by an overwhelming 70 percent. Apart from the legal objections to the amendment, which will be discussed more below, the amendment’s passing raises an obvious question—was it really necessary for voters to prohibit Oklahoma courts from considering Sharia law? A quick search of Westlaw (the online legal research service) returns not one result for a case in which an Oklahoma court considered Sharia law in reaching its decision. Of course, as comedian Stephen Colbert facetiously opined on his November 3 show, “just because something doesn’t exist, doesn’t mean you shouldn’t ban it.” (In that same segment Mr. Colbert called for ballot initiatives to ban cat airline pilots, baby hurling, and man-futon marriages). Further, as the Los Angeles Times and other publications have reported, out of a total population of over 3.6 million, there are only approximately 15,000 Muslims living in the state of Oklahoma, equivalent to approximately 0.4 percent.
None of this, however, stopped the Oklahoma legislature from placing the measure on the November 2 ballot, nor did it stop 70 percent of Oklahomans from casting an affirmative vote. The bill’s primary author, former Oklahoma State Representative Rex Duncan (a Republican lawyer from Sand Springs, Oklahoma, who did not seek reelection in 2010) was not discouraged by the fact that Sharia law had never been considered by an Oklahoma court. Mr. Duncan pointed to the United Kingdom and was quoted by the Edmond Sun as saying that Sharia law “is a cancer upon the survivability of the UK.” He called the bill “a pre-emptive strike against Sharia law coming to Oklahoma.” One of the bill’s co-authors, State Senator Anthony Sykes (another Republican attorney from Moore, Oklahoma), was similarly quoted as saying that “Sharia law coming to the U.S. is a scary concept. Hopefully the passage of this constitutional amendment will prevent it in Oklahoma.”
As one might guess, it did not take long for the first legal challenge to the Sharia law ban to be filed—two days to be exact. On November 4, Muneer Awad, executive director of the Oklahoma chapter of the Council on American-Islamic Relations (CAIR) filed a complaint in the United States District Court for the Western District of Oklahoma. In his complaint, Awad seeks a temporary restraining order and preliminary injunction enjoining the Oklahoma State Board of Elections from certifying the election results for the Sharia law ballot proposition. The complaint alleges that the ballot measure “is a gross transgression of the Establishment Clause”—so gross, Awad claims, that “little precedent deals with violations similar in magnitude.” Awad further asserts that the measure violates the First Amendment’s Free Exercise Clause.
Specifically, Mr. Awad contends that the Sharia law ban violates the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion”) “because it has a purpose and effect that is sectarian and because it necessitates excessive religious entanglement.” Either of these things would be sufficient to find an Establishment Clause violation. In Lemon v. Kurtzman, a case decided in 1971 that has become the central case in Establishment Clause jurisprudence, the Supreme Court set forth a three-pronged test for determining whether a government action violates the Establishment Clause. Under this test, government action does not violate the Establishment Clause if it (1) has a secular purpose, (2) does not have the principal or primary effect of advancing or inhibiting religion, and (3) does not foster and excessive entanglement with religion. In the case of the Sharia law ban, it is difficult, to say the least, to find a secular purpose, or to argue that the ban does not have the principal or primary effect of inhibiting religion. Similarly, it is likely that enforcement of the ban would require an excessive entanglement with religion. Accordingly, it is extremely likely that the ban will be found to violate the Establishment Clause.
Finally, it is also likely that the Sharia law ban violates the First Amendment’s Free Exercise Clause. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (2003), the Supreme Court held that:
At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.
The Court went on to hold that
[a]lthough a law targeting religious beliefs as such is never permissible, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.
It is clear in this case that the Sharia law ban is not facially neutral, discriminates against a specific religious group, and prohibits conduct undertaken for religious reasons. Accordingly, in order to save the ban from a constitutional attack, its supporters would have to show that it is supported by a compelling interest and is narrowly tailored. Given the facts cited above—specifically that Muslims make up .4 percent of the total population of Oklahoma and no Oklahoma court has ever cited Sharia law in deciding a case—it is exceedingly unlikely that any court would buy into an argument that the Sharia ban is supported by a compelling interest.
On November 9, U.S. District Judge Vicki Miles-LaGrange issued the temporary restraining order after she found that Mr. Awad had standing to bring the suit (because an invasion of his First Amendment rights was “both particularized and imminent”) and that he had made a preliminary showing that the new law would violate his First Amendment rights. Judge Miles-LaGrange then scheduling a hearing for November 22, when she will decide whether to issue a preliminary injunction. It is important to note that issuance of a temporary restraining order does not necessarily mean that the Court is going to find in Awad’s favor, although it is certainly a very good indication that it will. Instead, issuance of the temporary restraining order means that Judge Miles-LaGrange determined that Awad demonstrated a “substantial likelihood of success on the merits.” With or without the constitutional amendment, it is exceedingly unlikely that Sharia law will ever find its way into an Oklahoma legal decision.
The case brought by Mr. Awad is Awad v. Ziriax, No. 10-1186, W.D. Okla. (Nov. 4, 2010).
On November 29, 2010, Judge Miles-LaGrange issued a permanent injunction blocking the certification of the Sharia law ballot measure. In her order, Judge Miles-LaGrange stated that the case goes “to the very foundation of our country, our Constitution, and particularly the Bill of Rights. Throughout the course of our country’s history, the will of the ‘majority’ has on occasion conflicted with the constitutional rights of individuals.” This injunction means that until Judge Miles-LaGrange hears the merits of Mr. Awad’s lawsuit and issues a final ruling on the constitutionality of the measure (which may take months to occur), the state Board of Elections is enjoined from certifying the election results, therefore preventing the measure from taking effect.
***The opinions expressed in this article are those of the author, Scott R. Grubman, only and do not necessarily reflect the opinions of the Department of Justice.