In a ruling issued this week, the Tenth Circuit took a crucial step in striking at the constitutionality of a 2010 Oklahoma ballot measure which purported to ban the consideration of “Sharia Law” by that state’s courts. Judge Scott Matheson’s order—which affirmed the trial court’s preliminary injunction against the Oklahoma law—is likely not the final word on the issue. Nonetheless, the opinion represents a strong vindication of Establishment Clause principles coming from an often-conservative circuit, and it portends a strong pushback by the federal judiciary against a manufactured “Sharia” scare campaign that is both politically irresponsible and legally untenable.
The Oklahoma controversy arises out of the “Save our State” referendum (State Question 755), which conservative activists placed on the state’s ballots in the 2010 elections after approval by the legislature. The measure would have amended the Oklahoma Constitution’s provisions on choice of law to prohibit any reference to Islamic law:
“The courts…shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution…and if necessary the laws of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.”
The amendment passed by an overwhelming margin in November 2010, gaining more than 70% of the vote. Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma, immediately filed suit in federal court seeking an injunction barring the amendment from taking legal effect. The district court of Oklahoma, finding that Awad had standing to challenge the law and that he had demonstrated the likelihood of success in his challenge to the law on the merits, granted the injunction.
The 10th Circuit’s emphatically-worded decision this week is heartening, and not only because it highlights the manifest unconstitutionality of the “Save Our State” amendment. Like the district court’s order before it, it also signaled—albeit in cautious judicial language—the sheer emptiness of the “Sharia threat” spawning the nationwide political movement of which the Oklahoma law is only a leading exemplar.
As detailed in a report by the Center for American Progress, primary responsibility for creating the notion that Sharia law presents an imminent threat to Amerian life rests with a small network of conservative “intellectuals” and financial backers. Funded from traditional right-wing sources like the Richard Mellon Scaife Foundation and the Eagle Forum, a small number of Islamophobic think-tanks have had astonishing success in bringing the Islamic law threat to mainstream attention. A few members of Congress, particularly Allen West of Florida and Peter King of New York, have provided a convenient megaphone for the message, and the movement has to date borne fruit in a number of state legislatures around the country. Perhaps the most effective agitator has been David Yerushalmi, founder of the Society of Americans for National Existence (also, not coincidentally, founder of the “Stop Islamization of America” organization, which the Anti-Defamation League has labeled a hate group). Driven by an apocalyptic notion of worldwide religious struggle, Yerushalmi has declared that “Muslim civilization is at war with Judeo-Christian civilization… the Muslim peoples, those committed to Islam as we know it today, are our enemies.” Yerushalmi produced a model anti-Sharia bill for use in state legislatures; astonishingly, legislatures in more than 10 states have introduced legislation substantially based on his template. To date, Arizona, Oklahoma, Louisiana, and Tennessee have successfully passed anti-Sharia legislation, and nearly half the states have at least introduced similar legislation. (See CAP, Ch. 2, p. 38).
Given that irrational fear and distrust of Islam remains a shameful blind spot for a nation that prides itself on religious pluralism, such a smear campaign is especially dangerous. It has also metastasized in recent months into a potential “issue” in the 2012 elections. Some conservative pundits have long sought to equate the Obama Administration’s supposedly conciliatory stance towards Muslim countries with the threat of surrender to Islamic law at home. Frank Gaffney of the “Center for Security Policy” analyzed the administration’s missile reduction agreements, of all things, as “an increasingly obvious and worrying pattern of official US submission to Islam and …Sharia.” Since last fall, presidential candidates Herman Cain, Michele Bachmann, and Newt Gingrich have sought political advantage through explicitly conflating two long-standing right-wing fears: radical Islam and the federal judiciary. Bachmann has repeatedly called for vigilance against the Sharia threat in US courts, and Gingrich declared in a speech last year that “Sharia is a mortal threat to the survival of freedom in the United States and in the world as we know it.”
Of course, no threat exists. There can be no doubt that, as a religious guide to personal behavior, family relations, and even contract principles, Sharia contains precepts which may clash with American law. However, no American court has ever subordinated its secular authority to Sharia; the notion that state constitutions need protection from encroaching theocracy is an outright, cynical fabrication. In a succinct report called “Nothing to Fear,” the ACLU helps debunk such claims. Of course, Muslim citizens have pointed to Sharia as evidence of the requirements of their faith—for instance, in a prisoner’s suit against a prison for failing to fulfill its constitutional duty to allow him to exercise his religious beliefs (Shaheed Allah v. Adella Jordan-Luster). On other occasions, courts have upheld the results of out-of-court arbitrations conducted in accordance with Islamic law—but have done so by subjecting the results to the same analysis as any other arbitration agreements (Abd Alla v. Mourssi). As the ACLU points out, courts have uniformly rejected defenses to civil or criminal liability based on religious law — as in People v. Benu when a court found a father guilty of child endangerment for facilitating his daughter’s underage marriage despite his invocation of Islamic law as a defense. Merely recognizing that Sharia exists—and that Muslims may rely on it to order their private affairs—is nothing like a surrender to Islam; it is the same routine accommodation of religious beliefs so loudly demanded by conservative groups when the religion in question is not Islam.
Within the context of its Establishment Clause analysis, the 10th Circuit reached the same conclusion: the threat against which the Oklahoma legislation is directed is a baseless one. First, it affirmed that the plaintiff had standing to challenge the legislation—and in doing so, acknowledged just how damaging the “Save Our State” amendment could be for Muslim Oklahomans. The court agreed with Awad’s claims about its possible effects: “stigmatizing him and others who practice the Muslim faith, inhibiting the practice of Islam, disabling a court from probating his last will and testament (which contains references to Sharia law), limiting the relief Muslims can obtain from Oklahoma state courts, and fostering excessive entanglement between the government and his religion.” Relying on 10th Circuit precedent like American Atheists v. Davenport holding that the “actual injury” required for standing can be fulfilled by unwelcome contact with government interferences in religious issues, the court found that “As a Muslim and citizen of Oklahoma, Mr. Awad is directly affected by the law…against which [his] complaints are directed.”
Judge Matheson then turned to the crucial question: which Establishment Clause standard provides the appropriate test for evaluating the constitutionality of the “Save Our State” amendment. The older test, which has been repeatedly criticized by members of the Court but still remains the default , is the “Lemon Test” derived from Lemon v. Kurtzman (1971). The court, however, affirmed the district court’s application of the stricter, less-used test derived from Larson v. Valente (1982). The Larson test applies the equivalent of strict scrutiny to laws which directly discriminate against certain religions, whereas the Lemon accords slightly more deferential review to laws which are not clearly discriminatory in intent. In the court’s words, “The Larson test provides that if a law discriminates among religions, it can survive only if it is ‘closely fitted to the furtherance of any compelling interest asserted.’”
The court found that, even on its face, the amendment betrayed a discriminatory intent towards Islam. Although its defenders insisted that it referred to Sharia only as an example of an impermissible “foreign” law, the court found otherwise; Judge Matheson found especially damning the passage which allowed reliance on other states’ law “provided the law of the other state does not include Sharia law.” Though as a practical matter the provision means nothing—no American state includes Sharia as part of its legal code—the discriminatory intent is difficult to hide.
Having determined that the Larson standard applied, the 10th Circuit went on to test whether the “Save Our State” amendment fulfilled its requirements: whether it was “closely fitted” to a “compelling government interest.” Noting that mere “speculation” or “statements of abstract principles” do not satisfy the government’s burden of showing a compelling interest, the court found the law’s justification in any kind of real threat to be lacking:
“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.”
Finding that interests as weighty as those protected by the First Amendment could not possibly be subordinated to such exploitative shadowboxing, the court ruled that the law’s challenger had demonstrated his likelihood of success on the merits and thus upheld the district court’s preliminary injunction .
This ruling does not, of course, put the matter to rest, even with respect to Oklahoma. The Republican state senator who sponsored the amendment pilloried the 10th Circuit’s decision as an attempt to “silence the voice of 70 percent of Oklahoma voters” on par with other supposed judicial outrages such as “legalized abortion and forced busing of school children.” Appeal will surely follow, and the response of other courts to similar state laws is still unclear. First Amendment challenges, at least on the Larson standard, might be more difficult against laws whose language does not explicitly single out Islam. A law under consideration in Pennsylvania, for instance, bans only reliance on “foreign” laws in more general terms; resolution of such a question may well depend on the willingness of courts to dig into legislative history to discern intent.
At the very least, Judge Matheson’s ruling is a strong statement of the constitutional case against such legislation as the Oklahoma amendment. Couched in the language of Establishment Clause jurisprudence as it is, it makes clear not only that the grounds for the legislation are nonexistent, but also that its effect amounts to unconstitutional discrimination.