Some Oklahoma voters are no doubt irate today about the fate of a law they passed in 2010 by a margin of more than 70 percent, but they really should have known better.
They may not be fans of Islamic law, or Sharia, but they can’t single it out for banishment from their courts without evidence of a compelling problem — and they simply didn’t have any.
That’s one of the key reasons the Denver-based 10th Circuit Court of Appeals on Tuesday upheld a ruling that blocked enforcement of the Oklahoma initiative. The three-judge federal panel said Muneer Awad, who heads the Oklahoma chapter of the Council on American-Islamic Relations and who had sued the state over the measure, was likely to prevail in arguing that it was unconstitutional.
And it clearly is unconstitutional, as far as we’re concerned. As the appellate court pointed out, Oklahoma couldn’t 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.”
If a state government can’t identify a serious problem that would be solved by singling out one religion for discrimination, then its action is illegitimate on its face. The First Amendment’s “establishment clause,” as interpreted by the courts, bars the government from favoring one or more religions over others, as the Oklahoma measure explicitly did.
Attorneys for the state obviously knew voters were on thin ice. In fact, those attorneys argued, implausibly, that the initiative actually barred courts from considering other religious law, too, since it said Oklahoma “courts shall not look to the legal precepts of other nations or cultures” before going on to specify “Sharia law.” But is Catholic canon law, for example, another “nation” or “culture”? Clearly not. The appellate court rightly gave this argument short shrift.
We hope it’s obvious that we would hardly welcome the application of Islamic law in Oklahoma or anywhere else in America. In fact, we consider the manner in which some Muslim nations have interpreted Sharia, particularly in regard to punishments imposed on criminals and the legal treatment of women, to be backward and occasionally even barbarbic.
But nothing remotely comparable has been or is likely to be adopted by Oklahoma courts in the name of Sharia. The state can’t flout the Constitution because its citizens fear that someday, somehow, religious law that currently has absolutely no influence in its courts could be embraced to the detriment of American liberty.
The court had a slightly different way of putting this: “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.”
