Appeals Court: Ban on Sharia and International Law ‘Likely Unconstitutional’

Appeals Court: Ban on Sharia and International Law ‘Likely Unconstitutional’

Gale Courey Toensing
1/20/12

A federal appeals court has unanimously upheld a lower court ruling blocking the implementation of an Oklahoma state law that would prohibit the use of Islamic Sharia law or international law – including tribal law – in state courts. The ruling is a victory not only for Muslims, but also for Indian country and all Americans, legal experts said.

The 10th Circuit Court of Appeals judges on January 10 upheld a decision by Oklahoma federal court Judge Vicki Miles-LaGrange granting a preliminary injunction against the implementation of an amendment to Oklahoma’s Constitution that was approved by 70 percent of voters on a ballot measure in November 2010. The amendment, variously known as the Sharia Law Amendment, the Oklahoma International Law Amendment or the “Save Our State Amendment,” was a legislatively-referred constitutional amendment, meaning that the state legislature rather than citizens of the state, voted to put the measure before the voters.

Muneer Awad, Oklahoma executive director of the Council on American-Islamic Relations (CAIR), immediately challenged the law, claiming it violated the First Amendment’s Establishment Clause, which forbids the government from giving preference to one religion over another. "This is an important reminder that the Constitution is the last line of defense against a rising tide of anti-Muslim bigotry in our society, and we are pleased that the appeals court recognized that fact," Awad said in a statement on CAIR’s web site when the appeals court ruling was announced. Awad noted that Oklahoma's anti-Sharia amendment is just one of more than 20 similar pieces of legislation introduced in state legislatures nationwide.

The ruling “is a victory for the Constitution and for the right of all Americans to freely practice their faith," said CAIR Staff Attorney Gadeir Abbas, who is co-counsel on the case.

The amendment would not only ban Sharia law, but also any consideration of international law, including tribal law. It said, in part, “This measure amends the State Constitution. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law. International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.”

The 10th Circuit ruling was also applauded in Indian country. “(It’s) a win for Indian country, although it is not a federal Indian law decision per se,” said Gabriel Galanda, in an e-mail response to a request for comment. Galanda is an enrolled member of the Round Valley Indian Tribes and partner in the Seattle-based firm Galanda Broadman. “The initiative, which astonishingly was passed by over 70 percent of Oklahoma's voters in 2010, specifically disallowed state courts from considering the laws of tribal nations that concern with their relationships with state governments, other tribal nations, or any person — in other words, it would have caused Oklahoma state courts to refuse any application whatsoever of tribal statutory or common law. Among other things, it would have turned any notion of full faith and credit or comity between Oklahoma state courts, and tribal courts in that state or elsewhere, on its head. The initiative would have proven particularly problematic in the realm of state-tribal enforcement of the Indian Child Welfare Act and the Violence Against Women Act. It would have taken state-tribal judicial relations, and relations in general, in Oklahoma back to the dark ages.”

Galanda referred to the Indian law blog Turtle Talk and the writings of its founder Professor Matthew Fletcher who has written about how state and tribal courts are increasingly "smoothing over the rough edges" of federal Indian law. “The (Oklahoma) the initiative would have made those edges razor sharp as they were in years past, Galanda said. Perhaps most shocking of all was that the initiative was drafted by the Oklahoma Attorney General, Galanda said. “That is a sad statement about modern Anglo American jurisprudence and its political influence, as well as the status of cultural and religious majority-minority relations in our country – even by Oklahoma's standards.” The ruling noted that the backers of the amendment acknowledged they did not know of any instance when an Oklahoma court applied Sharia law or used the legal precepts of other countries.

The most “hysterical” part of the 10th Circuit opinion concerns whether there was any compelling state interest that justified the initiative's bar to state judicial application of international, including tribal, law, Galanda said. He pointed to the appellate judges’ explanation that, constitutionally speaking, the initiative must have served a compelling state interest, as well as represent ‘a close fit’ between that interest and an actual state problem that would be solved by the law. “The judges showed a great sense of humor in explaining: 'It is unnecessary because both a compelling interest and a close fit are required to survive strict scrutiny. It is not feasible because we have no concrete problem or compelling interest to try to fit with the Save Our State Amendment. One cannot try on a glove to see if it fits when the glove is missing.' There is no question the glove would not have fit Indian country,” Galanda said.

The three-judge panel also affirmed the right of Awad to challenge the law’s constitutionality. The appellants in the case argued that Awad didn’t have standing to bring the case forward because he hadn’t “suffered an actual or imminent injury.” But Awad argued that the amendment threatened to injure him in several ways – by 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 could obtain from Oklahoma state courts. “But when the law that voters wish to enact is likely unconstitutional, their interests do not outweigh Mr. Awad’s in having his constitutional rights protected,” the judges wrote.

The case will now return to the federal district court in Oklahoma City to determine the constitutionality of the amendment.

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