Tuesday, January 10, 2012
A three-judge panel of the Tenth Circuit today issued a preliminary injunction halting Oklahoma's effort to amend its constitution to include an anti-Sharia provision. The court ruled in Awad v. Ziriax that the plaintiff, Muneer Awad, would likely succeed in challenging the provision under the Establishment Clause. We previously posted on the case here.
The ruling is hardly a surprise. The provision facially singles out and discriminates against Islam and Islamic law, even though there was no evidence that any Oklahoma court had ever considered or applied Islamic law, much less in a way that would inspire the state to ban it. And the state apparently only weakly defended the provision, claiming that its only interest in the provision was to determine what law is applied in Oklahoma courts.
The case grows out of Oklahoma voters' approval (by 70%) of the "Save our State" constitutional amendment, which reads:
The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. 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. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
Muneer Awad, a Muslim, sued to stop its implementation, claiming that it would single him out for negative treatment because of his faith and inhibit his ability to practice his faith, in violation of both religion clauses.
The Tenth Circuit ruled that Awad had standing, that the case was ripe for review, and that Awad succeeded in showing a likelihood of success on his Establishment Clause claim. The court said that the provision discriminated among religions on its face (by singling out Islam), and thus had to satisfy strict scrutiny under Larson v. Valente (1982). But all the state could come up with for its "compelling interest" was determining which law applied in Oklahoma courts--not enough, according to the court. Moreover, the flat ban on Sharia Law was too rough a cut to meet the narrow tailoring (or "close fit") required under strict scrutiny.