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November 30, 2010

Oklahoma Anti-Sharia Law Update

Yesterday afternoon, the U.S. District Court judge granted a preliminary injunction that enjoins the State of Oklahoma from certifying the election results in State Question 755, the "Save Our State Amendment." SQ 755 would ban Oklahoma courts from using international or Sharia law in making decisions. It passed with 70% of the vote.

From the decision (PDF):

This order addresses issues that go to the very foundation of our country, our Constitution, and particularly, the Bill of Rights. Throughout the course of our country’s history, the will of the “majority” has on occasion conflicted with the constitutional rights of individuals, an occurrence which our founders foresaw and provided for through the Bill of Rights. As the United States Supreme Court has stated:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

[...]

Having carefully reviewed the briefs on this issue, and having heard the evidence and arguments presented at the hearing, the Court finds that entry of a preliminary injunction enjoining defendants from certifying the election results for State Question 755 would not be adverse to the public interest. While the public has an interest in the will of the voters being carried out, for the reasons set forth above, the Court finds that the public has a more profound and long-term interest in upholding an individual’s constitutional rights.

The preliminary injunction will be in force until the judge rules on the merits of the lawsuit, but having already analyzed the constitutional issues, I don't suppose that will take too long and we know which way it will shake out.

My own view is that the judge's order seriously misconstrues the law of standing, which requires a litigant to have a sufficient injury which can be redressed by the court. The court essentially bought the CAIR plaintiff's argument that the Oklahoma amendment would interfere with his free exercise of religion. She credited, among other dubious ideas, the plaintiff's testimony that Sharia law is not law, but rather a religious practice.

As I mentioned on the Pat Campbell Radio Show, if it were true that Sharia law is a religious practice and not law then the First and Fourteenth Amendments would already prevent Oklahoma courts (and all other state courts) from using it. The plaintiff's argument contradicts what he claims is a goal of his lawsuit: to have his will probated under Sharia law. Nevertheless, Judge Miles-LaGrange ate it up.

Expect the Tenth Circuit to spit this one back.


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posted by Gabriel Malor at 07:32 AM

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