Sunday, September 11, 2011

Anti-Shariah might be Anti-American

Tomorrow morning, the 10th U.S. Circuit Court of Appeals will make a critical ruling on the constitutionality of a measure that prohibits Oklahoma judges from considering Islamic law to settle cases.

Back in November of 2010, the state voted on a referendum proposing an amendment to the state constitution that would ban Islamic law. The referendum, also known as the “Save Our State Amendment”, passed with seventy percent voter support. Immediately after the election, Muneer Awad, head of the local chapter of the Council of American-Islamic Relations, filed a lawsuit claiming that the amendment disregards the establishment clause of the First Amendment. By condemning one religion exclusively, the government gives preferential treatment to other religions. U.S District Judge Vicki Miles-LaGrange agreed with Awad’s case and issued a preliminary injunction on the amendment, claiming, “the will of the ‘majority’ has on occasion conflicted with the constitutional rights of individuals.” Those in support of the anti-Shariah amendment have appealed this decision, arguing, “Just as Mr. Awad’s First Amendment rights are fundamental, so too are the voting rights of the 695,000 Oklahomans who voted in favor of State Question 755.”

Tomorrow’s crucial appeal decision raises the debate over two central notions of the First Amendment; the establishment clause and the right to free exercise of religion. If deemed constitutional, this amendment would render void any marital contracts or wills in Oklahoma that were drafted by Islamic religious guidelines based on the fact that they would require courts to consider Shariah law. Mr. Awad’s own will is one of these civil documents that be considered null.

In my opinion, this seems to fundamentally violate Mr. Awad’s basic right to “free exercise of religion.” Mr. Awad would not be able to formulate his will according to the direction of his religious conscience. There are circumstances in which restrictions are placed on an individual’s ability to practice their religion freely, however, these situations arise when religious practices cause substantial harm to others or in the case of state possessing a “compelling interest” to limit religious conduct. Yet within the compelling interest doctrine, the Supreme Court ruled in Church of Lukumi Babalu Aye v. City of Hialeah that a compelling interest cannot target a particular religious practice. This amendment fails to meet the compelling interest test as it exclusively targets Muslims, thus this is not a circumstance in which restrictions to an individual’s “free exercise of religion” is constitutional.

Furthermore, according to Justice Hugo Black in Everson v. Board of Education, the establishment clause means, “Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.” The “Save Our State Amendment” explicitly violates the establishment clause by condemning Islamic law, essentially making it inferior to all other religions in the eyes of the government.

Those who support the amendment proclaim they have a “fundamentally political right to vote”, yet to me it seems irrational for one to believe they should be given the ability to vote on another’s civil liberties and constitutional rights. The Appeals Court will be making a decision on this case tomorrow, almost exactly 10 years after the September 11th attacks. That decision has incredible power. It has the power to highlight either the worst of American culture; the intolerant anti-Islamic sentiment that has permeated our society in the decade following 9/11... or to highlight the best of our culture; the promise of freedom that those throughout the world look onto as both a sanctuary and an inspiration.


Harry R. said...

I agree with Callie that this amendment restricting Islamic law unconstitutionally restricts a specific religion. As Everson and Lukumi Babalu Aye discuss, laws which treat religions differently are typically unconstitutional. The law in question is one such law, for it singles out Islam as different from other religions. While the right to vote is certainly vital, arguing that this right allows for the creation of unjust laws is inappropriate. Were this the case, the argument could be made that, because the majority voted for it, a Holocaust would be constitutional, a clearly terrifying precedent.

Zoey Goldnick said...

The voting rights of these people are important, but States are not allowed to create law in complete opposition to our Country's constitution. In addition, this law could affect citizens who did not have the opportunity to vote on it. This amendment would nullify marital law if writen under Islamic religious guidelines. This would affect non-Oklamhoma citizens who in the future would need to move to the State for a variety of circumstances. This law far outreaches those who vote in it's favor. Furthermore, even if Nationwide there was a majority, I completely agree that this law, prohibiting the consideration of Islamic law, is unconstitutional. The free exercise clause ensures that simple majority rule cannot outweigh a minority's rights.

Jean A said...

I agree with Callie that passing an amendment restricting Islamic law is completely unconstitutional. While not explicity saying this, in my opinion, by passing this law, the State of Oklahoma is essentially saying they do not want Islamic citizens, nor approve of their religious views. By not being accepting of their laws, they are not only taking away their right to free exercise, but also their freedom to live as they wish in Oklahoma. Like Zoey said, this will ultimately prevent Islams from coming to live in Oklahoma as well. In this case, majority can not overrule the minority.

BryceS said...

I agree that this man has his freedom to practice under the First Amendment and I agree with Zoey in that the state cannot defy the federal government. Prior to 1947, the ability for states to construct their own constitutions regarding religion was problematic. Although this man may be seen as a threat to many, this nation’s constitution is framed to defend the minority. If a majority rules, they cannot trump the constitutional rights of their opposition (let alone prevent them from even practicing, as in this situation), regardless of their religious affiliation.

Ashley R said...

I disagree with this post. Firstly regarding the marriage quibble, US law does not recognize religious marriages – that is why we have a Justice of the Peace. To recognize Sharia law in US courts would privilege a specific religious doctrine over others, thus violating the establishment clause and equal justice under the law. To ban Sharia law would not violate the free exercise of Muslims. Simply put, Sharia law could not defend actions such as, killing gays and mutilating and killing one’s wife. Just like other rights, rights are limited when they begin to harm the property and lives of others. Sharia law would provide inequalities of the law and would allow a defense for physically harming others.

Mike HJ said...

I agree with Ashley's comment. One cannot use religion as a safe haven in committing acts that fundamentally oppose our US constitution. I am not saying that the majority of Shariah law is in direct opposition to the US constitution, however there are definitely gray areas. In those areas, the US law must rule. Where as it is sometimes required by orthodox Mormons to practice polygamy, with the consequences "for such failure and refusal would be damnation in the life to come," the US Supreme Court ruled that it is in fact illegal to do so.