The Sharia ban was approved in a referendum in the state in November 2010 as an amendment to the state constitution. It was approved by 70 percent of the voters. However, few voters were aware of the contents of the amendment as it was never subject to much public debate. The amendment was approved along with several other amendments that were non-controversial.
The amendment would ban Oklahoma courts from considering international or Islamic law.
The US district court in Oklahoma City last year ruled the language violated the US Constitution. The losers then appealed to the federal appeals court in Denver. On Tuesday, that court upheld the US district court decision. The losers may now try to appeal to the US Supreme Court, the final arbiter on constitutional questions.
Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma, started the court struggle by suing to block the law from taking effect, arguing that the so-called “Save Our State Amendment” violated his First Amendment rights.
The state amendment read, in part: “The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law.”
Backers argued that the amendment intended to ban all religious laws, that Islamic law was merely named as an example and that it wasn’t meant as a specific attack on Muslims. The appeals court disagreed.
“That argument conflicts with the amendment’s plain language, which mentions Sharia law in two places,” the appeals court opinion said.
The court also noted that the backers of the amendment admitted they did not know of any instance when an Oklahoma court applied Sharia law or used the legal precepts of other countries.
Awad argued that the ban on Islamic law would likely affect every aspect of his life as well as the execution of his will after his death since his will cites Islamic precepts.
The appeals court said Awad made a “strong showing” of potential harm.
It might seem strange that in a democracy a court could rule that 70 percent of a state’s voters are wrong and overrule them. The court explained: “When the law that voters wish to enact is likely unconstitutional, their interests do not outweigh Mr. Awad’s in having his constitutional rights protected.”
The appeals court ruling went on:
“We conclude that Mr. Awad’s allegation—that the proposed state amendment expressly condemns his religion and exposes him and other Muslims in Oklahoma to disfavored treatment—suffices to establish the kind of direct injury-in-fact necessary to create Establishment Clause standing….
“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.”
Okalahoma was the first state to approve language banning Sharia law, a reflection of a fear coursing through conservative circles the past two years that Muslims were plotting to take over the United States by getting courts to adopt Sharia law.
No other state has passed a similar Sharia ban, but 20 states have such legislation pending before them.
Proponents of the Sharia ban feared just the kind of decision that came from the appeals court this week. Therefore, recent versions of the legislation have avoided ever naming Sharia law and simply ban the use of any religious law in state courts. They will likely note that the appeals court specifically mentioned the citation of Sharia law in its decision. That may embolden them to pursue language that doesn’t mention Sharia law.