Today, the Tenth Circuit Court of Appeals affirmed an injunction against Oklahoma’s anti-Sharia law. I guest-blogged about this issue more than a year ago on the front page, even before I was anointed a sub-Ordinary Gentleman, and followed up on it later, musing that enjoining the certification of the state constitutional amendment was potentially a source of some tension. I make a preliminary post today — I was busy at work when I saw the story — and I include the text of that post as a postscript here. But this is the analysis I promised after I’d read the case.
And it turns out, this is actually a nifty little standing opinion. It looks like the state put a lot of its chips on the appeal on the issue of the plaintiff’s standing. In the suit, the plaintiff claimed that were the measure enacted, he would suffer injury
…in several ways, such as condemning his Muslim faith, inhibiting the practice of Islam, disabling a court from probating his will (which contains references to Sharia law), and limiting the relief he and other Muslims can obtain from Oklahoma state courts.
And the Tenth Circuit said, “Yeah, that’s a valid claim to injury and we the Federal Courts will hear the case.” Specifically, the Tenth Circuit referred to American Atheists, Inc. v. Davenport (10th Cir. 2010) 637 F.3d 1095, the Utah memorial crosses case, in which the individual plaintiff was found to have had standing because “[A]llegations of personal contact with a state-sponsored image suffice to demonstrate . . . direct injury” for standing purposes in Establishment Clause cases. Id. at 1113 (quotations omitted):
Mr. Awad suffers a form of “personal and unwelcome contact” with an amendment to the Oklahoma Constitution that would target his religion for disfavored treatment. As a Muslim and citizen of Oklahoma, Mr. Awad is “directly affected by the law[] . . . against which [his] complaints are directed.”
So simply having one’s religion singled out for condemnation by the state is enough of an injury to grant standing, under this standard: “a constitutional directive of exclusion and disfavored treatment of a particular religious legal tradition” is a tangible injury.
Below, reacting to my preliminary post and an initial real of the opinion, commenter Jaybird asks, “How can this be an Establishment Clause case”? An obvious enough question — this would seem to be a dis-Establishment of religion, not an Establishment. Personally, I don’t have a problem with this, as I see the Establishment Clause as requiring governmental neutrality with regards to matters of religion (as does the Free Exercise Clause, and as do both the Clauses when read in conjunction). But if you take a narrower read of that text than do I, you could conclude that the Establishment Clause only prohibits the creation of an official state religion. Or you could conclude that the Establishment Clause does not permit a state endorsement of a religion. I think the better read, though, is that it is the state weighing in on a matter of individual preference, a matter in which individuals ought to have personal autonomy. It is the state exceeding the legitimate and appropriate extent of its power. If an Oklahoman is interested in converting to Islam, the state of Oklahoma has no legitimate interest in the outcome of that person’s decision. The state weighing in and saying, “No, don’t do that, and here’s a disincentive to doing it to help make up your mind” opens the door too widely and too easily to the state then taking the next step of saying, “In fact, here’s an incentive to choosing Christianity instead,” and now we’re way down the slippery slope to Establishment.
The Tenth takes a slightly different approach than I, citing to a lesser-known Establishment Clause case, Larson v. Valente (1982) 456 U.S. 228. In Larson, the state of Minnesota imposed heightened financial and tax reporting requirements on religious organizations that derived more than half of their funds from non-members. The Court found this law was aimed directly at groups like the Hare Krishnas which got money by approaching people at airports and generally making unpopular pests of themselves until they were paid to leave the person who did not wish to be proselytized to alone.
The Larson test provides that if a law discriminates among various religions, it must be “closely fitted to the furtherance of any compelling interest asserted,” else it is an unconstitutional Establishment, id.at 255, because “[t]he State may not adopt programs or practices … which aid or oppose any religion … . This prohibition is absolute.” Id. at 246. This is still a strict scrutiny inquiry, one which almost always dooms a state law (as it does here), but there is only a two-part test unlike the more complex and controversial Lemon test. Under Larson, the court first looks to see if the law tangibly benefits or harms a particular religion, and then searches for the existence of a compelling governmental interest justifying the discriminatory treatment.
The law flunked this test. It singled out Sharia law specifically, and the state of Oklahoma failed to even identify an actual problem that the law was intended to address, much less to demonstrate why that problem was so important that the Constitution itself had to be balanced against it, or how the law as written did so in the careful, deferential, and narrow fashion demanded of such rare and exigent circumstances. Emphasizing the difference between a valid state concern and a compelling problem in need of an immediate solution, the Tenth Circuit indicated that there was no evidence of any concrete, actual problem concerning application of Sharia law in Oklahoma courts in the record; the courts ought not to permit exceptions to be carved into the Constitution based on mere speculation.
Moving on, having found that Awad’s injuries would arise from the enactment of this law into the state’s Constitution, the Tenth Circuit says that Awad does not have to wait for that to actually happen, and thus to actually suffer the injury, in order to take legal action to prevent it from happening. This at least addresses the concern I raised last November, and I agree that a court can and should act to prevent a likely injury from occurring. But again I’m not 100% satisfied here — perhaps that is a result of my lack of familiarity with the mechanics of implementation of initiative constitutional amendments under Oklahoma law, a subject I would rarely encounter in my own law practice.
This seems eminently and obviously the right decision. It’s simply obnoxious for a state to single out one religion and say “This one is bad.” And as I wrote back in 2010, about the only conceivably way in which Sharia law might enter Oklahoma’s courts is by way of enforcement of a private arbitration agreement choosing Sharia law as the substantive law of the case. Adults should be free to pick whatever decision-making structures they choose. The voters here succumbed to the hysterical fears of non-existent threats based on the ill-understood concepts of state legislators who clearly did not know any better. The District Court and now the Tenth Circuit have fulfilled their duties as the sober sentinels of the highest laws of our nation regardless of the vicissitudes of political popularity, and for this they deserve our thanks.
Original post: No time to write about it now, but I’ve just learned that a U.S. District Court the Tenth Circuit Court of Appeals has stricken down Oklahoma’s anti-Sharia law as unconstitutional. This is hardly a surprise; I’m making a note of it now because several months ago I wrote about this law and wish to follow up on the story. I’ll come back and edit this post when I’ve had time to read the recent opinion. In the meantime, professional Islamophobes shall cry havoc and let slip the dogs of hysteria.
It does not appear that the court had a very difficult time reaching this result. That is as it should be – this was easily one of the most blatantly unconstitutional pieces of legislation passed in recent memory.
This here is exactly why we need to get rod of all the liberal activist judges.
Well, that’s an interesting typo.
I just love that the judges are worried about “premature adjudication”. I’m sure their wives are also. :D)
Driving home, I heard NPR talking about this. Here’s the part that made me knit my brow… one of the criticisms of the law was that it violated the establishment clause by essentially establishing all of the other religions.
I’m wondering why the criticism was not that it violated the free exercise clause.
I mean, surely this law would not have been okay had it prevented *ALL* religious kinda courts… right?
I think I heard the same story on the way home, it sounded to me as if the complaint was based Free Exercise but the Appeals Court found it to be in violation of the Establishment Clause. I wonder if that might actually be sounder ground given that the specific case brought was in relation to the potential enforcement of a will.
So the complaint involves the actions of the State in choosing to enforce or not enforce a legal document based on it’s preferences for or against a given religion – not the ability of the plaintiff to actually exercise his religion (since he’d be dead when the State acts).
Having found an Establishment Clause violation, the Tenth Circuit never even reached the Free Exercise question, but apparently that was on the books too.
I don’t understand how “you can’t use Sharia courts” would be an Establishment violation rather than a Free Exercise violation.
A dis-Establishment is an Establishment. At least according to the Tenth Circuit.
The amount of hemming and hawing I would need to engage in to be able to say your first sentence strikes me as prohibitive.
Jaybird,
To establish a church is to favor it over others. To disetablish a church is to favor others over it. In each case, some are favored and others are disfavored.
We could effectively make Southern Baptists the established church either by granting them a unique set of benefits or by denying all other churches any standard benefits, which causes the standard benefits to then be unique to the Southern Baptists.
As an analogy, I could favor one student by adding 10 points to his grade. I could also favor that student by not touching his grade but subtracting 10 points from every other student’s grade.
Does that help to clarify how dis-establishment = establishment? Or did I just muddy the waters further?
No, I get the argument.
I’m wondering why the “Free Exercise” clause isn’t the relevant clause here rather than the argument that dis-establishing Sharia means establishing Zoroastrianism (among others)…
I mean, the reason that makes the most sense to me would be if this were building up to a “we have to disestablish *EVERYTHING* according to the establishment clause” argument… while leaning heavily upon the Free Exercise clause would prevent that argument from leading there.
Now, if the Free Exercise clause wasn’t there, maybe I’d see your argument as having much more merit in and of itself… as it is, I still think that I would need to engage in far too much hemming and hawing.
(Would disestablishing Molech worship *REALLY* count as an establishment of Lutheranism, Pastafarianism, and Norse Paganism? Really?)
I think you could get there from the Free Exercise clause, too. I just think you can get there about as easily from either direction.
I can’t guess as to why the Court chose their particular route, but I guess I don’t see why it’s problematic.
Would an amendment that disestablished *ALL* religious courts be unconstitutional under the framework advanced by the Tenth Circuit?
No, not under the rubric they used, because all religions would be equally impacted and there would be no singling out of a particular faith.
There.
That’s my problem with it, then.
So the complaint involves the actions of the State in choosing to enforce or not enforce a legal document based on it’s preferences for or against a given religion – not the ability of the plaintiff to actually exercise his religion (since he’d be dead when the State acts).
So, just reaching here, if someone said “I would like to leave all of my money to my life partner”, a Christian could sue to have the will changed because of Leviticus but a Muslim could not?
Would it be kosher for the state to limit the authority of all religious-based arbitration councils (e.g. not just sharia-based ones, but also rabbinical courts)? Alternatively (and I think on much firmer ground), could a state limit the authority of *any* arbitration mechanism in certain types of disputes (specifically, divorce and child custody)?
As far as the reasoning in this case goes, I think the answer is “yes, the state could do that.” Child custody in particular implicates a state interest that is at least “important,” although whether it is “compelling” or not is subject to debate.
Whether the law you’re talking about would survive the “sustantial impairment” standard of a Free Exercise challenge (see Sherbert v. Verner (1963) 374 U.S. 398) would require at minimum knowing the specifics of the law and the specifics of the particular challenge. For now, let’s say that could go either way.
Except that Oklahoma has a right to amend their constitution, and to control their court system. In Canada and several European courts, parallel “Sharia Justice Systems” have been set up to adjudicate “Islamic divorce” and other Sharia-based proceedings, generally with the women involved being forced and intimidated into “going along” with the proceedings and being denied their rights as spelled out in the civil law of the countries; in many cases, these women are denied even the knowledge that they HAVE rights according to the civil law of the countries in question.
From a women’s rights perspective, it would seem that disallowing the use of parallel “sharia” courts would be the right thing to do. After all, we’re talking about a religion that took the state of women’s rights when it began (Mohammed started out as the boytoy of an older widow who owned and operated her own business!) and set it back hundreds of years to the point where it prescribed that women couldn’t even leave the house without a male family escort.
“Except that Oklahoma has a right to amend their constitution, and to control their court system.”
But not to the extent that it conflicts with the US Constitution.
As for noting that Sharia law won’t allow a woman to leave a building even if she wishes to, I admit I don’t know enough about Sharia to say whether or not this is the case. But I know enough about US law to know you can’t pass a state law requiring women “stay where they’re told.” So what then is the purpose of the Oklahoma law?
As I recall, I addressed this in my earlier posts about Sharia law. If the choice-of-law provision in the arbitration agreement runs afoul of an overriding public policy objective of the state, a court may abrogate the chosen law to the extent necessary to vindicate the public policy objective.
For instance, protecting the welfare of minor children is an overriding public policy objective. So is ensuring equality before the law regardless of gender. If the Sharia arbitration agreement results in a blatantly unfair process, a court will have latitude to not enforce it.
Of course, this does require the judge to be a “judicial activist.” But that’s okay as long as the judicial activism is directed against them damn MOOS-lums.
Ultimately, individual adherence to religious-based rules cannot be compulsory because that would conflict with the Constitution. So a woman cannot be compelled to submit to Sharia law.
But if two people voluntarily agree to arbitration, enforcement of wills, etc., on the dictates of Sharia law, that agreement can be enforced without violating the Constitution, just as much as if I had a contract dispute with my employer and we both voluntarily agreed to submit to let a coin flip decide our dispute.
The Oklahoma amendment was at best redundant on the first issue because such coerced submission is already illegal. All it did was touch on the second issue, banning a voluntary standard of adjudication.
And even that, frankly, is bulls**t.
The bill was never, ever meant to address a voluntary standard of adjudication, anymore than it was ever needed to protect the religious freedoms of non-Muslims.
The only purpose of the bill was to send a loud, clear and ugly message about who we like and who we don’t.
Period.
Any other argument is dishonest and backhanded.
The only purpose of the bill was to send a loud, clear and ugly message about who we like and who we don’t.
Yes, of course. Unfortunately it’s a rare case where that can be clearly presented in court as part the legal attack on a law. One of the things I love about the Church of the Lukumi Babalu Aya v. City of Hialeah, Florida case (besides its delightfully euphonious name) is that after all the fine legal arguments were laid out the Supremes declared pretty bluntly that the case actually was all about one group just not liking another.
I don’t follow this line of argument. It boil down to, some Muslims in Canada are breaking the law – by denying women their legal rights – therefore Canadian law allows for women to be denied their rights.
Where people are being forced into an illegal situation that is an enforcement issue not evidence that the situation is actually legal.
And of course non of this touches on whether people have the right to choose Sharia arbitration in things like business contracts.
Anyway the premise that Canadian law allows Sharia divorce
doesn’t appear to be true
http://cnews.canoe.ca/CNEWS/Canada/2009/04/30/9300071-sun.html
The other issue would be whether there is a conflict with the Federal Arbitration Act, though I’m not sure off the top of my head the extent to which that Act contains restrictions on what, if any, issues a state may prohibit from arbitration.
I fail to understand how this works in a contract-based society. You sign a contract, it has an arbitration clause…
(also, Hamas would simply claim “it’s not a religious court” … simply has a lot of muslims on it)
Would it be kosher for the state to limit the authority of all religious-based arbitration councils (e.g. not just sharia-based ones, but also rabbinical courts)?
If we disestablish jewish courts, how would we meaningfully talk about kosher?
*grin*
This is looking more like front page material here, folks.