Sharia Law and the Constitution
Oklahoma voters have banned state courts from relying on Islamic or Sharia law. Does the law violate the Constitution’s guarantee of religious liberty?
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community..
What Is Sharia Law?
On November 2, 2010, Oklahoma voters approved a ballot initiative that would forbid state courts from considering Islamic law, otherwise known as Sharia law, in reaching decisions. Six days later, a federal judge temporarily blocked the law from going into effect while she considers a lawsuit challenging its constitutionality.
A number of readers have already asked me to weigh in on this controversial measure. In just a minute, I’ll explain that the law’s specific ban on Sharia is vulnerable under the First Amendment, but that other language in the law might save it from being struck down.
What’s Behind the Oklahoma Ban on Sharia Law?
In the November 2010 election, Oklahoma voters approved a referendum (officially known as State Question 755) that would add one new paragraph to the Oklahoma Constitution. Among other things, that paragraph states, and I quote:
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.
Before we get to the constitutional issues, you might be wondering what motivated the new law. Were Oklahoma judges throwing out their statute books and relying on the Koran instead?
No, in fact, even the proponents of the law concede that no Oklahoma court has used Sharia law in a decision. According to at least one sponsor of the law, it is designed to prevent Oklahoma from following the example of Great Britain where the courts have reportedly been empowered to enforce the judgments of private Sharia-based tribunals.
Does the Sharia Ban Violate the First Amendment?
Be that as it may, the law was immediately challenged in court by a Muslim American named Muneer Awad. Awad sued various state officials, arguing that the law violates the First Amendment’s ban on laws “respecting an establishment of religion,” otherwise known as the Establishment Clause. Awad has also argued that the law infringes on his right to “free exercise” of religion under the First Amendment. However, since experts consider the Establishment clause claim to be stronger, I’m going to focus on that one.
The Lemon Test
Under the Establishment Clause, government cannot become “excessively entangled in religion.”
As I’ve described before, the leading Supreme Court case on the Establishment Clause is Lemon v. Kurtzman, which created a three-pronged test that lower courts invariable refer to as “the Lemon test.” Under this test, a law can have an effect on religion without violating the Establishment Clause so long as:
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It has a secular purpose
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Its primary effect is neither to advance nor inhibit religion
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It does not foster “excessive government entanglement” with religion.
As you may have noticed, the language of the Lemon test is sufficiently vague that it leaves attorneys plenty of room to argue both sides of just about any issue. Think of it as lawyers making lemonade out of a Lemon.
The Law Actually Prohibits All Non-US Law
In any event, in this case, the outcome may depend on how judges read various phrases in the contested measure. If we focus on the phrase “the courts shall not consider . . . Sharia law,” then the law does appear to have a non-secular purpose of inhibiting a particular religion, thus failing the first two prongs of the Lemon test.
As supporters of the law point out, however, the sentence right before that one broadly prohibits courts from looking to the legal precepts of any nation or culture other than the US. Thus, they claim that the law has a valid secular purpose to promote the supremacy of US state and federal law as against foreign legal influences. In that light, the reference to Sharia law is simply intended as an example of the sort of law considered off-limits for Oklahoma courts.
Must Judges Become Theologians?
What about the third prong of the Lemon test: government “entanglement?” Awad argues that the law forces Oklahoma state courts to delve into theological questions of what does and doesn’t constitute Sharia. But again, because of the broader language in the law, defendants contend that all a court needs to consider is whether a particular legal concept is or is not grounded in US state or federal law. If the answer is no, then they must disregard it whether or not it technically constitutes Sharia.
It’s a fascinating case and–in my opinion–not a slam dunk for either side. But even if the law is upheld, it could lead to some strange consequences. For example, if a will references religious law, can it be admitted to probate in Oklahoma? Or if a private contract specifies that it is to be governed by, say, Canadian law, can it be enforced in Oklahoma? We’ll find out more as Awad’s lawsuit makes its way through the courts. In the meantime, I’ll say hasta la vista. Or I guess that should be “see you later.”
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Koran image courtesy of Shutterstock
About the Author
Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).