Saturday, November 13, 2010

Judicial Oligarchy Extends Grip

     Once again, a federal judge has set aside the will of a sovereign state.  In this case, over 70% of Oklahoma voters approved an amendment to the state constitution prohibiting Oklahoma courts from importing Sharia law as a basis for deciding cases in court.  Even such conservative luminaries as Michael Medved have endorsed the judge’s ruling.  Whether or not it was advisable for the voters of Oklahoma to single out Islam for special treatment is not at issue.  However, whether doing so comports with the U.S. Constitution must be resolved on the narrow grounds of legal analysis.  So far, no compelling analysis against the amendment has appeared.

     The amendment to Oklahoma’s constitution is State Question 755, which adds some provisions to Article VII, Section 1.  That portion of the state constitution creates state courts and establishes their jurisdiction.  The relevant text added to Article VII, Section 1, is as follows:  “The courts shall not look to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international or Sharia Law.”

     Within days of the voters’ adopting the amendment, the executive director of the Council for American-Islamic Relations in Oklahoma filed suit in federal court.  Mr. Muneer Awad, the plaintiff, asked the federal judge to stop the Board of Elections from certifying the vote on State Question 755.  Mr. Awad argued that the ban on importing Sharia into Oklahoma courts amounted to an establishment of Judeo-Christian faiths.  In particular, he argued that the Oklahoma amendment violated the legal test of Lemon v. Kurtzman, which articulates a three-part analysis of government actions regarding religion.  The analysis poses three questions:  (1) Does the government action have a secular purpose? (2) Is its primary effect to either advance or inhibit religion?  (3) Does it foster excessive government entanglement with religion?  (If you are interested, the citation is 403 U.S. 602, 612-613 (1971).)

     To begin with, the measure has an obviously secular purpose.  How could a measure that bans formal religious law from court have anything other than a secular purpose?  As for advancing or inhibiting religion, it does not inhibit Islam to any extent it is not already limited by existing laws.  Muslims may go to their temples, may pray five times a day, may follow the teachings of their prophet.  However, Muslim men in Oklahoma may not marry four wives.  They may also not employ stoning or the other cruel and unusual punishments prescribed in the Koran for various religious crimes.  In prohibiting such practices, Oklahoma is already refusing to base its law on Sharia.  State Question 755 merely codifies the existing practice.

     It is settled law that there is no universal exemption from the criminal code based on religious principles.  For example, the shamanistic tradition of using peyote is nonetheless a violation of federal drug laws.  On the other hand, Muslims in Oklahoma may practice their religion freely, as long as they do not violate existing law in doing so.  In his brief, Mr. Awad states that Sharia provides guidance for him in conducting much of his personal business.  He argues that the amendment denies him and his fellow Muslims the support of Sharia in business transactions.  However, nothing prevents him and a business partner from following the principles of Sharia in concluding a transaction, so long as such principles also conform to the laws of Oklahoma.  Enforcement of such business arrangements would be based on contract law, not Sharia per se.  In denying Sharia enfranchisement in Oklahoma courts, the voters have simply drawn a bright line against any creeping accommodation of practices already disallowed.

     What about advancing Judeo-Christian principles at the expense of Sharia?  Does prohibiting Sharia alone as a legal precedent have the effect of privileging Christianity?  Not at all.  Here, it is important to distinguish between a formal religious code, such as Sharia, and the general traditions of a given faith.  At some level, all secular law has its origin in religious traditions.  Long before American states had laws against murder the Jews had prohibited it as part of the Ten Commandments.  But the Jews were not alone.  All the major religious traditions prohibit murder (and all allow exemptions and exceptions).  To the extent Oklahoma’s law against murder may be said to derive from Judeo-Christian principles, it may also be said to derive from essentially universal moral principles.  Look carefully at Oklahoma jurisprudence.  There are no doubt cases in which judges have appealed generally to Christian principles of morality.  However, it would be highly unusual—and, in your author’s view, a clear violation of the establishment clause of the First Amendmentfor an Oklahoma judge to base a court ruling on a specific principle of, for instance, Catholic Canon Law.  In this context, the prohibition in State Question 755 is unnecessary.

     It would have been better if Oklahoma had passed an amendment declaring that court decisions could not be based on any formal religious code, whether the Sharia of Islam or the Canon Law of the Catholic Church.  As noted, such a measure would in effect simply restate the principles of the First Amendment.  Consider the obverse of State Question 755:  Oklahoma courts shall base their decisions on Sharia (or Canon Law, or the codified pronouncements of the Dalai Lama).  Would such a measure be constitutional?  Clearly not.  Why then should a declaration against using religious law as a basis for court cases be considered to advance religion, under the Lemon test?

     Still, the Oklahoma amendment does not ban all religious codes from court.  It bans only Sharia.  Or does it?  The amendment also prevents basing Oklahoma decisions on international law, not just Islam.  Because the Ten Commandments did not arise in the United States, some have already argued that the Oklahoma amendment may have the presumably unintended consequence of banning the Ten Commandments from court as well as Sharia.  To the extent such analysis is correct, it serves to blunt the force of the argument about singling out Sharia among religious codes.

     The final part of the Lemon test is whether the amendment entangles the state in religion.  It should go without saying that a measure prohibiting the importation of religion into court can hardly be taken to entangle the courts in religion.  Let us not take a thing for its opposite.

     Banning the use of Sharia as a basis for court cases in effect just restates the First Amendment prohibition on establishing religion.  At the same time, refusing to base court decisions on Sharia does not prohibit the exercise of Islam outside court to the limit of the secular law.  Moreover, the fact that Oklahoma is silent on other religious formal law does not establish such formal law as the law of the state.  Thus, given existing First Amendment jurisprudence, the Oklahoma amendment is unnecessary.  It is also provocative.  But it is certainly within the bounds of the U.S. Constitution.  In light of this analysis, the judge’s decision to override the will of the people is more and more clearly an act of judicial overreaching.  A pessimist would declare that we live under a judicial oligarchy.


  1. "... some have already argued that the Oklahoma amendment may have the presumably unintended consequence of banning the Ten Commandments from court as well as Sharia."

    That seems to be a specious argument, since we do not prosecute anyone for violating any of the Ten Commandments in the first place. We prosecute against murder because it's against the civil law.

    But the specific wording of the amendment is clumsy, as you point out. What should have been targeted was direct recourse to any form of law that is not religion-neutral (ie, secular), thus strengthening the separation of church from state.

  2. GTC, yes, I would have preferred a broader-based amendment. Or nothing. Since I'm not an Oklahoma voter, my view doesn't matter. In any event, you are spot-on in noting that we do not prosecute for murder as a violation of the Ten Commandments per se. Because the Oklahoma amendment specifically refers to Sharia, as opposed to general principles of Islamic law, it is analogous to forbidding importation of the Ten Commandments as a code of law. Because the U.S. Constitution already forbids doing that, under the establishment clause, the Oklahoma amendment should be unnecessary.

    If the Oklahoma amendment had banned the Ten Commandments instead of Sharia, I venture to say the coalitions for and against would swap. Religious skeptics might be the only ones able to stay neutral on a measure excluding a religious code--any religious code--from court.

    My irrepressible naivete keeps on being astonished that judges are not prepared to leave alone measures that are unwise but strictly Constitutional.

  3. Right. Better would be nothing. Hey, related to this, the brand-new Florida legislature on its first day passed a resolution criticizing the FL State Supreme Court for its activism. They couldn't do anything about it, but they did complain.