Banning the Banning of Sharia In Oklahoma

Aaron Worthing at Patterico's Pontifications on the judge's ruling Banning the Banning of Sharia In Oklahoma

He finds it problematic.

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.
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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.

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.
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...this federal court is seeking to interpret a proposed provision of the state constitution. Shouldn’t the courts just let the state courts figure out what the amendment means, first, and then let people challenge whether that amendment, as interpreted, is unconstitutional? In other words, the plaintiff belongs in state court, not federal court. And that would appear to be an issue of ripeness. It might very well be the case that if the judge had let the amendment be placed into the state constitution, and let the plaintiff fight it out in state court that the state courts would have said simply that they will only interpret this constitution to prevent the courts from citing sharia law as authority, but where a contract or a will incorporates a sharia concept, even by name, they will honor that private contract or will. And if that is their interpretation, guess what? He doesn’t even have standing anymore.

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.

Let’s start with the most dubious claim, that this results in “excessive entanglement with religion.” You might think that it would be hard to claim that a law that prohibits courts from considering religious law in its decisions represents entanglement. And guess what? You would right. This is best described as “disengagement,” not “entanglement.”

To me the most natural interpretation is as follows. The courts cannot cite Islamic law as even persuasive authority. And maybe, if a person’s private contract or will incorporates Islamic concepts by name, the courts would be required to disregard that concept. So for instance if a private contract to rent out a ballroom requires the tenant to obey Islamic law while on the premises, the courts might be forced to render that provision a nullity.

But the Plaintiff’s theory of interpretation of the amendment goes even further seeming to argue that the courts will see it as their duty to determine what Islamic law is and even if a provision of a contract or will is facially secular in origin, still nullify it if it is too similar to Sharia (or any other prohibited system of law).
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I am no great scholar on Sharia, but I will go out on a limb and guess it is generally opposed to theft, rape and murder. So does that mean that Oklahoma’s laws against the same are invalid because Sharia law coincidentally agrees? Does that mean a loan contract that doesn’t include interest is somehow invalid because Sharia law agrees? Or is that only the rule if one of the parties is Muslim?

Lots more. RTWT.