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.
Source: CNN
hrdcore
1, January 11, 2012 at 6:10 pm
[snip] Do we want our judges to cite cases used in Italy or a law in Finland???? Yes they can be fought but at great expense.
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You’re worried about something that isn’t happening in US law. As it is now, there are laws and rules that ground laws and judicial rulings in our Constitution and US law. I don’t know of any instance where a judge in a county courthouse is standing up and saying, “Yeah, I know that this state’s law says one thing, but I heard about some law in Finland that says something different, so I’m going to impose Finish law here!” You probably hear people on talk radio or certain “news” channels claiming that such things are happening (or, they claim, are about to happen, or are happening in other countries), but in reality, no US judge is basing rulings on foreign laws just because he or she feels like it.
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When a majority of the people in a state want something should a single judge override the will of the people, two branches of the government and yet be immune from the results?
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I’m not sure what you mean by “and yet be immune from the results?”
But, in answer to your question, yes. Sometimes, a single judge must override the will of the people and the other two branches of government. That’s exactly the situation the Founders intended in writing the Constitution.
The way the Constitution is set up and the way that US law has worked for more than a century is that when a legislature or the voters of a state pass something that is in violation of the Constitution, then some judge or panel of judges have the responsibility to rule as the law and constitution require – to strike down that law no matter how popular it might be. That’s a crucial part of how democracy has worked so well in the US.
There are other countries where a popular vote can enact any law. But, personally, I prefer US law.
“The mental gymnastics of the fundies of all stripes is amazing.
They really need to stick to debating things like how many angels can dance on the head of a pin, except for the Southern Baptist angels who are not allowed to dance.” (OS)
lol!
Our Constitution buff was glad to see PostMan chime in. The OkLa state statute says state judges cannot consider international law OR Sharia law. So if a state court cannot consider international law it means that it cannot consider an international law adopted by the United States by a Treaty. If the Cherokee Nation has a treaty with the United States then that Treaty (cap ours) is the highest law of the land, and the highest law of Oklahoma. It trumps this new Okie statute. The members of the Cherokee Tribe and any other tribe can rely on their treaty. They can also rely on the International Treaty On Human Rights. So can I. Here is the provision rightly cited by PostMan:
Article. VI. [ Annotations ]
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
[end]
Hence, it is incumbent upon a state court judge in Oklahoma to recognize treaties which adopt international law to be the Supreme law of Oklahoma.
The next topic of our 5thGradeGroup will be the international treaties which pertain to human rights. Thank you PostMan. The Cherokees in Oklahoma thank you as well. No end round their treaty by this statute. “Sheriif–get off the Reservation!”
We also like the last paragraph of Article VI which binds state court judges by Oath to support the federal Constitution.
I not so sure that the Oklahoma’s are are afraid of international law that are treaty’s, but judges citing court cases from other countries or useing religious exceptions as now occurring in European courts. And yes it seams that Muslims are in the news a lot and are using sharia laws and customs to invalidate laws long on the books. Do we want our judges to cite cases used in Italy or a law in Finland???? Yes they can be fought but at great expense. too many decisions are made citing no law on the books but a feeling. When a majority of the people in a state want something should a single judge override the will of the people, two branches of the government and yet be immune from the results?
JCTheBigTree – That’s exactly right, but I’ve never found that this simple observation gains any traction with Christian evangelicals/fundamentalists. You have to keep in mind that it’s a bit like saying “some day gravity might stop working.” To them, US law and the Constitution is OBVIOUSLY a manifestation of what they think Christianity is all about. (I suspect that discussing the US Constitution with Rep. Bachmann would illustrate this point. These are also the folks who try to conflate the Declaration of Independence with the Constitution.)
I wonder how those legislators in New Hampshire who tried to require references to (I am not making this up) the Magna Carta in NH laws would react to this ruling?
But my first thought in reading this was: I wonder how soon after the ruling was announced that the fund raising e-mails and letters went out? I assume they were pre-written, sealed up, stamped and waiting in the parking lot of the post office for the reading of the ruling.
I imagine they go something like, “Dear Fellow Concerned American, Yet again, unelected, unaccountable Government Judges attacked the traditional Judeo-Christian basis American law! They decided to promote Muslim Sharia Law! By donating to my campaign/our cause/this PAC, you can help to bring America back from the precipice of Muslim Marxist Atheist Fascism and restore the Constitution! Even as little as $1,000.00 would help!”
I’m sure that the folks who run these groups will soon be meeting at swanky NY restaurants or on Hawaiian golf courses to strategize how to protect the Constitution from the onslaught of Oklahoma judges who have been turning to Sharia for their decisions.
If fundamental Christians effectively ban Sharia or other religious law now, there is nothing stopping a majority of muslims outlawing ‘christian’ or ‘American’ laws later.
If people are worried about Sharia law taking over in the future, the ONLY way to protect ourselves now is to strictly uphold the seperation of Church and State and keep ALL religions out of our law.
People protesting at Supreme Court. More of this, please: http://www.ustream.tv/recorded/19701378
“Many American Indian tribes rely on Treaty Law. A treaty is between two nations. Cherokee and the United States for example. Do you see where this is going? You tribes in Oklahoma are gonna get relegated to Sharia status tout suite.”
5thGrade,
Wrong! The treaty is U.S. law. See Article VI of the U.S. Constitution.
The problem with the Oklahoma Amendment is the specific to Sharia Law. Had the scope of the amendment been broader, I think the court would not have had the same objection. We have already established what the law of the land is for the United States, and it doesn’t include Sharia Law, except those portions which are agreeable to international law (formerly known as the law of nations).
All Oklahoma needs to do is create an amendment that overrides the common law authority of the court, and they can easily prevent Sharia Law from being recognized by their courts.
OT but two interesting USSC stories:
“Consumers who sign credit card agreements that feature an arbitration clause cannot dispute fees or charges in court, the Supreme Court ruled Tuesday. The 8-to-1 decision drew immediate fire from consumer advocates.”
I can’t believe this was 8-1. Guess those agreements are people now too.
This one though made me laugh – the hearing on the FCC indecency case:
Then, [Waxman] raises his arms, Moses-like, to the glorious friezes that surround the interior of the ceremonial courtroom. And then Waxman points to one sculpted classical stone lawgiver after another as he guides the justices through the fleeting bottoms that pervade their lofty spaces: “There’s a bare buttock there, and there’s a bare buttock here,” he marvels. “And there may be more that I hadn’t seen. But frankly, I had never focused on it before.” To which Justice Antonin Scalia grits out, “Me neither,” while all of the justices gape up at the walls above them, like bemused Muppets on Veterinarian Hospital.
“the claim that virtually no one could challenge the law — an increasingly (and disturbingly) common argument in federal court”
That is a bad gene, but I digress … 😉
Great article on a very timely case Professor. I was especially interested in the part about only banning Sharia law.
One of our members pointed out at the afternoon recess that the law says international law cannot be considered. This is the trickbag which many citizens of Oklahoma should think about carefully. Many American Indian tribes rely on Treaty Law. A treaty is between two nations. Cherokee and the United States for example. Do you see where this is going? You tribes in Oklahoma are gonna get relegated to Sharia status tout suite. Ant that is French for pretty damn quick in internaitonal lingo.
5thGradeChief (not Indian Chief)
The mental gymnastics of the fundies of all stripes is amazing.
They really need to stick to debating things like how many angels can dance on the head of a pin, except for the Southern Baptist angels who are not allowed to dance.
Full Faith and Credit come to mind…. Treaty’s and when the US Congress Ratifying them…..I may be to left filed…..but I wanna know about NAFTA and it applications with the proposed law…
I’ve heard it said that anti-Sharia laws such as the one in Oklahoma represent a solution looking for a problem.
Political season trickery … how to create an issue to run against.
“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”
The State’s argument is embarrassingly duplicitous since it is clear from the language and from the surrounding societal context that this was directly aimed at Islam. I think the court’s reasoning is sound and that the amendment would directly impact on the religious freedom of Islamic citizens. There are too may obvious instances to cite as to where consideration of certain religious law would impact on a lawsuit. The most obvious being with matters of “Halel” and “Kasruth”. The humorless irony of this is I could see the same legislature banning birth control under certain Christian Religious principles and seeing neither dichotomy, or hypocrisy at work.
Our group, the Cult of the 5th Grade is meeting right now over the noon hour. We wish to point out that the United States weighed in on this issue in a big way in 1945 and 1946 in a town in Germany variously known as Nurnberg and Nuremburg. The United States Military Commission, in a series of trials right after the International trials held a trial known as The Judges Trial. If one Googles that name or the name Alltshoffer a narrative comes up explaining it. Essentially it is a violation of International Law for a nation to dismantle due process rights. For a state like Oklahoma to say that a state court must ignore the holding in the Judges Trial and take away some due process protection such as the circumstantial evidence rule would violate international law. Those defendants in that trial (former judges and lawyers) got a lot of jail time. Americans do not have any sense of history, particularly out there in Okie, so we thought that we would pass this along to the uninitiated. Meanwhile we warn all of our members to not do anyting stupid like drive through Oklahoma or ride a bus through there because one might be subjectted to a judicial lynching–paritcularly if one is a minority.
Our class is working up an article which this blog might consider as a topic. It centers on the injustice done to a fellow who was black who made the grave mistake of walking out the door of the Greyhound Bus station in Mt. Vernon. Illinois one fall day in September 1981. He was an African American travelling to Mississippi. He was charged with stabbing a white woman who could only say that she saw only the back of his head thru the window and that he had black hair. But when the witness saw this guy through the bullet proof glass at the police station with the cop at the interrogation table she said it was him. He was sentenced to 40 years in prision and died in from prison condidtions in 1996. In 2007 some white guy admitted that he had done the deed. Our victims name is Grover Thompson. You folks in Okie land should Google that name and read the story. It is a violation of human rights to dismantle due process rights in your court system. The Nurembeg Laws will apply to you Okies when judgment day comes.
-Chief–CultofThe5thGrade
no name,no blame.
Excellent article, Professor. I think Awad v. Ziriax has the potential to become a teaching case regarding the dual protections of the Free Exercise and Establishment clauses. The Oklahoma law is a perfect example of overreaching by the state out of fear that negatively impacts Free Exercise when the Establishment Clause already provides protections against the formal incorporation of Sharia into secular law. It will be interesting to see how this case plays out.