[Guest post by Aaron Worthing; send your tips here.]
One controversy that has been boiling since the election is over Question 755 in Oklahoma: a proposed state constitutional amendment banning the consideration of Sharia and the law of other nations or cultures generally, in court decisions. Now, let me start with something that most commenters on the issue don’t seem to bother with very much: the proposed constitutional amendment itself. It says:
The Courts…, 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.
So this won sufficient votes to become officially part of Oklahoma’s constitution, and a federal judge has enjoined the state from certifying the election results. In other words, Judge LeGrange said that they are not allowed to say that this constitutional amendment was ratified.
(Look at the end of this post for a link to a pdf of the opinion and TRO.)
For lawyers that is the first alarm bell that this judge is making a mistake. I have never heard of a federal judge saying that they are going to pretend that the constitution has not actually been amended unless there was a problem in the voting itself. What they typically do is enjoin enforcement of the state constitutional provisions that violates the federal constitution. In other words, the law is there, but it’s a dead letter. The judge wants to declare that this law hasn’t even been rightfully passed, which is wrong. If there is a violation of the first amendment’s religion clauses, the correct solution is to enjoin enforcement of the offending part.
And indeed, the whole amendment contains parts that no one could reasonably object to as a matter of constitutional law. I didn’t include it in the quoted text, but it also amends their constitution to eliminate from the list of courts the “State Industrial Court” and replace it with the “Worker’s Compensation court,” a decision that couldn’t possibly be unconstitutional and indeed probably amounts to no more than a name change.
So that’s the first problem in this ruling. It also has serious issues with standing. Based on the case law, the plaintiff doesn’t have standing by virtue of the fact that he is a muslim and thus offended by this whole thing. That kind of injury is not seen as particularized enough. But he has a less laughable claim that this will invalidate his will, depending on what the document says. Since I have not found a copy of it, I will just assume the judge is right on this point.
Getting to the merits, the court goes through the old “Lemon Test” that requires that “the governmental action (1) must have a secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster an excessive government entanglement with religion.” Of course the continuing vitality of Lemon v. Kurtzman is questionable at best, but let’s assume it applies.