Court Overturns Oklahoma Ban on Sharia Law

Combining a variety of conservative culture-war obsessions, Oklahoma voters in 2010 passed an initiative that would "forbid courts from looking at international law or Sharia Law when deciding cases."  Today, the Tenth Circuit Court of Appeals ruled that the initiative violated the Establishment Clause of the First Amendment.

The Court's reasoning is straightforward and correct. As the panel unanimously concluded, the initiative singled out the Muslim faith among religious laws for discrimination. Because it implicates the free exercise of religion—a fundamental right—the voter-approve amendment has to survive the legal test of "strict scrutiny": That is, it has to be 1) narrowly tailored to 2) address a compelling state interest. 
 
The ban on sharia law clearly fails both tests. Not only is there no "compelling state interest" for the law; proponents of the initiative failed to "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 in which 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. The fact that legislation was not attempting to solve any concrete problem makes the question of whether the law was closely fitted to the designed objective moot—as the opinion notes, "one cannot try on a glove to see if it fits when the glove is missing." But even if there had been a compelling state interest, it is an unlikely that a law forbidding judges from "considering" (as opposed to applying) one form and only one form only of religious law could be a narrowly tailored response to a problem.    

The "Save our State" initiative, in short, is nothing but invidious religious discrimination. It stigmatizes a particular faith in order to address a problem that doesn't exist. In striking it down, the Tenth Circuit upheld the core principles of the First and Fourteenth Amendments.

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