We previously discussed the law passed in Oklahoma barring state judges from considering Islamic and international law in their decisions. Now the United States Court of Appeals for the Tenth Circuit has blocked the law. The three-judge panel upheld an injunction barring certification of Question 755. The decision has some important language for both standing and free exercise claims.
The case is Awad v. Ziriax, 2012 U.S. App. LEXIS 475 (January 10, 2012). One of the central issues was the claim that virtually no one could challenge the law — an increasingly (and disturbingly) common argument in federal court. In Awad, Oklahoma argued “ that Mr. Awad does not have standing because he has not suffered an actual or imminent injury . . . because the amendment has not taken effect or been interpreted by any Oklahoma court, Mr. Awad’s alleged injuries are necessarily speculative. They further contend that Mr. Awad’s assertion that he will suffer official condemnation of his religion is ‘personal opinion.’” Id. at *14. In upholding standing in the free exercise claim, the Tenth Circuit discussed cases including American Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010) and Catholic League for Religious and Civil Rights v. City and Cnty. of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc). The Court held that non-economic religious values are sufficient for standing, stating the
“Legislature did not simply adopt a non-binding resolution opposing the consideration or use of Sharia law in state courts, it proposed and the electorate agreed to enshrine such a prohibition in the state’s constitution. Mr. Awad is facing the consequences of a statewide election approving a constitutional measure that would disfavor his religion relative to others. The non-binding city resolution in Catholic League conveyed “a government message,” 624 F.3d at 1048. The Oklahoma amendment conveys more than a message; it would impose a constitutional command.”
The panel went on to examine the free exercise claims and found that “[t]he proposed amendment discriminates among religions,” said the judges. “The Oklahoma amendment specifically names the target of its discrimination. The only religious law mentioned in the amendment is Sharia law.” The state had argued that Sharia law was simply cited as an example of international authority barred under the law, but the panel saw a more sectarian purpose:
But that argument conflicts with the amendment’s plain language, which mentions Sharia law in two places.
First, the amendment instructs Oklahoma courts to “uphold and adhere to . . . if necessary the law of another state of the United States provided the law of the other state [*39] does not include Sharia Law, in making judicial decisions.” Id. at 168 (emphasis added). 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.
Second, the amendment states that Oklahoma “courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.” Id. (emphasis added). Appellants argue that the word “cultures” should be read to include religious groups, and that the amendment therefore “plainly prohibits the consideration of legal precepts associated with all religious denominations.” Aplt. Supp. Br. at 7. We disagree.
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.
Because the amendment discriminates among religions, it is “suspect,” and “we apply strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246.
That triggers strict scrutiny analysis under Larson v. Valente, 456 U.S. 228, 255 (1982) See also Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The panel further noted:
The proposed amendment goes further than preventing courts from “applying” Sharia law. The amendment forbids state courts from “considering” those laws. See Aplt. App. Vol. 1 at 168. Even if the state could identify and support a reason to single out and restrict Sharia law in its courts, the amendment’s complete ban of Sharia law is hardly an exercise of narrow tailoring. Appellants have not carried their burden to show why the proposed amendment is “closely fitted” to a compelling interest.
The decision could well become an issue in the presidential election which has already seen the demonizing of all things Muslim by some. This site has been quite outspoken in its condemnation of Sharia legal systems. However, this ill-conceived law has accomplished little beyond wasting the money of the people of Oklahoma and tarnishing the image of Oklahoma. Ironically, as I have mentioned before, I have a great deal of affection for Oklahoma. I love visiting the state and I have always found Oklahomans to be incredibly friendly and kind. Yet, the legislature appears obsessed with sectarian and religious measures that leave the impression that the state is intolerant — which is not what I have found in many visits to the state.
It will be interesting if the state now pushes for an en banc, which I think is likely. They could skip the en banc and file directly with the Supreme Court, but I would expect cert would be difficult to secure. While some justices might hold anti-Sharia sentiments, many are not going to like the legislative limitations on what a judge may “consider” in a case (even though various justices have criticized the reliance on international authority in cases like Graham v. Florida). A majority of the justices clearly considered such authority not as binding but as relevant to some cases, writing in Graham:
The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.
We will be watching for any appeal in the case.