Court Rules That Oklahoma’s Anti-Islamic Amendment Is Probably Unconstitutional

On Tuesday, the Tenth Circuit Court of Appeals confirmed the likely unconstitutionality (PDF) of a proposed amendment to the Oklahoma constitution. The proposed amendment, called — I kid you not — the “Save Our State” Amendment, commands that courts “shall not look to the precepts of other nations or cultures” and would have prohibited judges from considering both “international law or Sharia Law” and the laws of other states that “include Sharia Law.”

Image via Shutterstock

This law would have been weird enough without the anti-Islamic sentiment because I don’t see a problem with allowing judges to consider the laws of other countries or cultures. Judges cannot treat religious or foreign laws as binding precedent, so where is the harm in judges carefully considering the wisdom (or lack thereof) behind laws of other countries and cultures when there’s not applicable U.S. law? Still, if the legislature and people of Oklahoma want to prohibit this, that’s their business (for instance, legislatures can enact laws dictating how the courts can interpret statutes).

But when the voters accepted a proposed amendment that singles out Islamic law, they got carried away. In a case called Larson v. Valente, the Supreme Court held that when a law discriminates among religions (as compared to a law that discriminates between religion and non-religion), the law is constitutional only if it is narrowly tailored to further an important government interest. The proposed Oklahoma amendment pretty clearly points a finger at Islamic law in particular, no matter how much the state tries to argue Sharia law is named only as “an example.”  Furthermore, the state offers very little in the way of a compelling government interest, remarking only that the state has an interest in dictating how its courts are run.

So the Tenth Circuit found the proposed amendment to be discriminatory and found that the state did not offer any compelling justifications for the discrimination. (It’s worth mentioning this case was argued in the context of a preliminary injunction, which means the law is not officially off the books but rather is “preliminarily” off the books until a permanent injunction can be litigated. However, given that the Tenth Circuit has already provided a clear and lengthy constitutional analysis, there’s not much left to be decided. In other words, the “Save Our State” amendment is probably gone for good.)

A final note to those of you who worry this means courts might be able to incorporate religious law into their decisions: they can’t. As I explained above, religious law is not acceptable precedent, and only really becomes an issue when you have people like the plaintiff in this case, a Muslim man who included in his will a request that a probate judge look to Islamic precepts if his wishes weren’t clear. And even then, if the Islamic precepts violated United States legal precepts, the U.S. law would trump. So no need to fret.

About katherine

Born in Texas, Katherine is now a lawyer in the northwestern United States.

  • http://twitter.com/the_ewan Ewan

    Surely any interaction with foreign law or international law is a foreign policy matter, and reserved to the federal government anyway. For example, if the US were to start behaving like a civilised country and sign up to the ICC, Oklahoma wouldn’t be able to exempt themselves, no matter how deep their own insularity runs.

    • Anonymous

      Interaction, yes. But judges ruling in cases often look at precedents set in other countries when they are deliberating. As Katherine  says, those foreign laws or decisions aren’t considered binding, but they can be helpful.

  • Anonymous

    Right now, in Ontario, we have a very high profile case where a father, mother and brother are alleged to have killed three of their daughters – as well as the father’s second wife in their (secretly polygamous) household. The prosecution alleges that this was an ‘honour killing’ – brought about by the ‘shameful’ (wearing tight jeans and consorting with non-afghan boys) conduct of their daughters.

    I wonder how a law like this would bind the hands of a judge attempting to understand the prosecutor’s arguments. If one can’t look to Islamic law, how could one understand the alleged motivation behind an ‘honour killing’?

    • Travshad

      Why would he need to look to Islamic law to understand the motiviations behind an honour killing?  Are you saying if these people followed some Islamic law regarding honour killings, that mitigates their actions in some way? 

      I do not see any possible way that this constitutional amendment would tie a judges hand in this case unless he intended to use some Islamic law to not hold the family fully responsible for the murders. 

      • P314i314e

        Well, stereotypically, for a prosecution, you want to show means, motive, and opportunity. If you can’t reference Sharia law, as interpreted by the defendants, you can’t discuss their motives, which might mess up the prosecution’s case! It’s harder to convict someone if you can’t tell the jury why they did it.

        (Tongue-in-cheek, I assume; this wouldn’t actually happen. And you could probably get around any such stupidly-worded law by claiming you’re not using Sharia law in the case, only the defendants’ beliefs about Sharia law. )

  • http://www.facebook.com/profile.php?id=649813048 Nicoline Smits

    That just shows how ignorant those Oklahoma law makers are. When James Madison wrote his proposal for the Constitution (you know, that document that conservatives think is carved in stone and may never have tittle nor iota changed), he looked at many different ways people had enacted constitutions, from the ancients (Athens, Sparta) to the moderns (France, England) and plenty in between. I’m sure there are things we could learn from other bodies of law, though I happen to think that Sharia is probably bad news when it comes to women’s rights. But then, whatever most conservatives cook up isn’t so great for women’s rights either.

  • Butterfly5906

    My favorite part of the Oklahoma law- it can be used to make the case that judges cannot consider the Bible.  I sometimes wonder if the people who voted for this law forgot that the Bible was written in the Middle East and is not, in fact, part of federal law.    

  • Kathy Orlinsky

    “shall not look to the precepts of other nations or cultures”
    So, Oklahoma is not planning to add a line from the Magna Carta to every one of its bills?  I guess NH isn’t going to have a ‘Save our State’ amendment anytime soon.

  • Anonymous

    As a resident of the “Great” state of Oklahoma, I’d just like everyone to know not all of us are a backward as our elected officials.   Trying our best to fight the good fight.  

    • http://friendlyatheist.com Richard Wade

      As much as they can be such tempting targets for ridicule, you are right. Not all Oklahomans are backward. Thank you for your courage and fortitude to stay and fight the good fight. Please do not take my parody below personally.

  • Brian Macker

    … But wouldn’t using Sharia law be the establishment of religion.

  • http://friendlyatheist.com Richard Wade

    So in their wisdom and foresight, these paranoid, xenophobic, fear-mongering demagogues have proactively prohibited the use of Sharia law in their state, before anyone has ever tried to use it or even proposed it. They’re forbidding it ahead of time, just in case.

    Okay, why not also proactively prohibit the use of Martian law, just in case?

    Mehbe ther ain’t no Marshuns on Mars yet, but Erth people will git there some day, an’ they’ll prob’ly git their own weird ideers an’ religins an’ laws an’ shit, an’ then they’ll come back here to Oklahoma, an’ try t’git their laws t’be used here. Thet’s jus’ not gonna be accep’ble. y’hear? So tha’s why we’s a-passin’ the Save Our State From Them Marshuns Amen-mint!


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