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Federal Appeals Court Blocks Implementation Of Oklahoma Sharia Law Ban

In 2010, Oklahoma voters passed a referendum blocking state judges from considering Islamic or any other form of international law when rendering decisions in Oklahoma courts. Despite widespread criticism, the referendum passed by a wide margin in what was widely attributed to the same kind of hysteria over Islam that we had seen the previous summer during furor over the so-called “Ground Zero” mosque. Almost immediately, legal scholars noted that the law had serious legal flaws and it wasn’t long before a lawsuit was filed. Munweer Awad, a Muslim-American resident of Oklahoma filed a federal lawsuit alleging that the law violated his religious liberty in that it prevented him from abiding by Muslim principles in matters such as property distribution at death. The U.S. District Court blocked the law from being implemented, in a ruling that accepting the majority of Awad’s argument. Today, the 10th Circuit Court of Appeals upheld that decision:

The 10th Circuit Court of Appeals​ today upheld a ruling that blocked the implementation of an Oklahoma initiative barring judges there from considering Islamic law in court decisions.

The Denver-based appellate court, one rung below the U.S. Supreme Court, said it is likely the initiative will be found unconstitutional because it singles out Islam for discrimination. The court said Oklahoma hasn’t shown any reason for the need to specifically ban Islamic law.

“Given the lack of evidence of any concrete problem, any harm seek to remedy with the proposed amendment is speculative at best,” 10th Circuit Judge Scott Matheson, writing for a three-judge panel of the court, concluded.

Oklahoma voters overwhelmingly approved the initiative in 2010. The measure prevents judges from basing rulings on international law and then mentions Islamic law — known as Shariah — specifically.

After the election, Muneer Awad, the executive director for the Oklahoma chapter of the Council on American-Islamic Relations, sued.

Awad argued that the initiative stigmatizes Islam and also denies him rights that are available to people of other religions. For instance, Awad said his will instructs a judge to look to Islamic precepts in situations where Awad’s wishes aren’t clear. The initiative, Awad said, would prevent a judge from doing that, even though the judge could do that for people who are Christian or Jewish.

“This is an important reminder,” Awad said today in a statement, “that the Constitution is the last line of defense against a rising tide of anti-Muslim bigotry in our society.”

A federal judge in Oklahoma granted a preliminary injunction last year that blocked the initiative from being certified. The state appealed that decision to the 10th Circuit.

Today’s ruling means the injunction will stay in place while Awad’s lawsuit goes forward.

In it’s ruling, which dealt principally with whether the injunction issued by the District Court should remain in effect, the 10th Circuit held that the state of Oklahoma had not demonstrated any compelling state interest for the law:

Appellants provided only one sentence on compelling interest. They simply assert that “Oklahoma certainly has a compelling interest in determining what law is applied in Oklahoma courts.” Aplt. Supp. Br. at 16.

Oklahoma’s asserted interest is a valid state concern. But this general statementalone is not sufficient to establish a compelling interest for purposes of this case. 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. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. Vol. 1 at 67-68.

Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support compelling interest.15 “To sacrifice First Amendment protections for so speculative a gain is not warranted . . . .” Columbia Broad. Sys., Inc. v. Democratic Nat’l Co., 412 U.S. 94, 127 (1973).

Because Appellants have failed to assert a compelling interest, they have failed to satisfy strict scrutiny. Mr. Awad has therefore made a strong showing that he is likely to prevail in a trial on the merits.

Additionally, as I noted shortly after the law was passed, the ban covered far more than Sharia Law and threatened to harm the interests of more than just the 10,000 or so Muslims who live in Oklahoma:

Native American tribes based in Oklahoma have already expressed concerns that the law will limit their ability to enforce tribal law on their reservations, for example. Additionally, business contracts have traditionally included what are called “Choice of Law” provisions which require that the law of a particular state would be applicable in interpreting it’s provisions. In an increasingly international business world, those provisions have expanded to include laws of other countries. If , for example, an Oklahoma company seeks to enforce the terms of a contract that provide that Canadian (or Mexican) law would apply, then this law would make it illegal for a Court to abide by the terms of the contract.

Clearly, though, it was Islam that was the primary target of the law and paranoia over the non-existent threat of Sharia Law that was used to stoke voter fear on this issue. Additionally, ignorance about Muslims and plain old bigotry surely played a role in this mess.

The Court concluded:

As the Ninth Circuit explained, when a law that voters have approved “affronts the federal Constitution—the Constitution which the people of the United States themselves ordained and established—the court merely reminds the people that they must govern themselves in accordance with the principles of their choosing.” Id.; see also Williams v. Rhodes, 393 U.S. 23, 29 (1968) (“[T]he Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.”). Appellants admitted at the preliminary injunction hearing that they did not know of any instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. 157-58. Delayed implementation of a measure that does not appear to address any immediate problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable.

This isn’t over yet, of course. Upholding the injunction merely means that the case returns to the District Court for a trial on the merits, unless the State of Oklahoma decides to appeal this to the Supreme Court that is. While nothing is guaranteed, though, it seems fairly apparent that it will be next to impossible for the state to win this case at trial. Which is exactly as it should be.

Here’s the opinion:

Munweer Awad v. Paul Ziriax et al

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Gustopher says:

    And now, all the women in Oklahoma have to wear burkas. Thanks activist judges!

    Like or Dislike: Thumb up 1 Thumb down 1

  2. PD Shaw says:

    The odd thing is that the law banned reliance on sharia law and international law, and the plaintiff’s challenge, as a Muslim, was based on religious discrimination. According to the footnote on the last page, the State argued belatedly that only the reference to sharia law need be stricken if the challenge is valid. However, the court found this argument waived at this time. I think those are the more interesting issues. I think the religious issue is quite clearly against the state.

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  3. PD Shaw says:

    @Gustopher: Not so fast; women will no longer be able to drive in Oklahama, which will cut traffic in half, force carpooling and reduce global warming. Sharia law is what the Sierra Club is all about.

    Like or Dislike: Thumb up 0 Thumb down 0

  4. grumpy realist says:

    I’m trying to figure out what they mean by “international law.” The standard way that international law has an effect in the US is because we’ve signed on to a treaty of some form. (Funny thing about that, isn’t there something in the U.S. Constitution about the validity of treaties…?)

    The other “wing” of international law is stuff that is considered SO bad that everyone considers it evil, even if we’ve not signed on to any treaty (e.g. slavery, genocide) and there’s no other way to drag the individuals into a law court.

    So the dingbats in Oklahoma have essentially said that they’re against doing stuff that is mandated by the U.S. Constitution and they’re against prosecuting people for slavery and genocide. Great going there, guys.

    You’ve also managed to thow out the freedom of individuals in a contract to add choice-of-law clauses, so you’ve managed to piss off a lot of business individuals. What’s next–saying we can’t use INCOTERMS for shipping contracts?

    Idiots.

    Like or Dislike: Thumb up 2 Thumb down 0

  5. Is “Gustopher” being satirical or serious?

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  6. @grumpy realist:

    As I noted in the post, non-American law also sometimes becomes relevant in civil cases involving a contract that has a Choice Of Law provision that relies on foreign law. This is not uncommon and the Oklahoma statute would have made it illegal.

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  7. John Burgess says:

    @Doug Mataconis: I’d only emphasize that it is not at all uncommon to have ‘choice of law‘ arise in contract claims. All it takes is for one side to be located outside the US and insist, in the mutually agreed contract, to application of its own (or even other) laws.

    Nearly all contracts have some sort of ‘choice of law’ clause, even in the US, between two American parties, stipulating that “the laws of State X shall pertain.” It gets a bit more complicated when one party is foreign, that’s all.

    Read the fine print… always a good idea.

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  8. John,

    Indeed. Fortunately, most American states follow the Uniform Commercial Code with only minor variations so that makes a lawyers job easily. Over the years, though, I’ve had to consult with solicitors in Canada about Canadian law, for example.

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  9. James H says:

    I was particularly worried about how this would affect arbitration and inheritance laws. On the latter point, Professor Volokh has asserted in the past that a US court should not enforce a will that reads, “My property shall be distributed in accordance with sharia.” But I suspect this clause would have wreaked havoc with a will that reads, “Under sharia, I hereby bequeath to my sons” blah blah blah “and to my daughters” blah blah blah.

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  10. sam says:

    @James H:

    I was particularly worried about how this would affect arbitration and inheritance laws. On the latter point, Professor Volokh has asserted in the past that a US court should not enforce a will that reads, “My property shall be distributed in accordance with sharia.

    That’s not quite accurate. It is true that he has argued that secular courts are not to get themselves involved in adjudicating contracts, etc. made under religious law, which could result in the court taking sides in a religious dispute. However, secular courts can enforce the results of religiously-based arbitration of a contract,etc. made under religious law. See, May Courts Interpret Contracts Under Religious Law (Islamic Law, Jewish Law, Canon Law, etc.)?

    If you draw your will, or forge your contracts, using sharia, then disputes about the will or the contract need to be resolved before the appropriate Islamic court of arbitration. The resolution, though, can be enforced in a secular court. Of course, no contract could be forged that abridged the constitutional rights of an American citizen. In that case, the secular court could just strike the contract down, period (religiously-based “principles” notwithstanding).

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  11. JohnMcC says:

    For what it’s worth, the OK law alway prohibited courts in that state from using the well respected traditional Jewish legal system called Beth Din. It also made Native American traditional law inoperable, as the OP noted. In other words, it consolidated all legal questions in OK into the single state system.

    Once upon a time there were real conservatives that appreciated the traditions and practices of peoples and cultures. They tried to protect long-honored systems from government intervention. What we have today on the right are not conservatives. They are something new and they must be defeated in the name of real conservatism.

    Like or Dislike: Thumb up 1 Thumb down 0

  12. grumpy realist says:

    @Doug Mataconis: Yah, except that the “battle of the forms” may mean you haven’t even figured out whose law to use to interpret to see if there’s a contract, let alone what the contract terms are.

    And some countries don’t care if there’s a “choice of law/forum” clause or not. Brazil technically allows them, but there’s a “public policy” loophole big enough to drive a battleship through. Funnily enough, they’re far happier with allowing arbitration clauses….

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  13. James in LA says:

    It’s always a good day when zealots are compelled to hear the word “NO.” They will soon be heating it a LOT.

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  14. Barry says:

    @JohnMcC: “Once upon a time there were real conservatives that appreciated the traditions and practices of peoples and cultures. ”

    Actually, no. The history of the USA is more a story of ‘you’ll fit into our system, and we’ll force you’.

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