A Legal Response to OK's Anti- Sharia Law (Guest Post)

I recently posted thoughts on the new Oklahoma referendum that bans the use of Sharia and International Law in deciding cases in that state.  I find it first of all discriminatory, but it would also seem unconstitutional.  But, I'm not an attorney, so I invited one of my church members, John McCauslin, who is an attorney, to address the issue from a legal perspective.  He did so in the comments section of the earlier posting, but I thought it valuable to bring it out front here to get more of a conversation going.  I appreciate John's willingness to take this on.  So I invite you to attend to his response.

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Bob asked me to give some thought to the just passed Oklahoma anti-Sharia referendum. My response is a rejection of the law on technical-legal grounds and for personal reasons.

Here is the heart of the new law, Oklahoma's State Ballot Question 755:

The [Oklahoma 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. . . .

My response from a technical perspective (after admittedly very limited research) is that the new law is patently unconstitutional in a variety of ways. Off-handedly, I can see that on its face it violates the Establishment Clause, the Free Exercise Clause, the Full Faith and Credit Clause, the Commerce Clause, and the Impairment of Contracts Clause. When the law is applied to specific circumstances it will likely come into violation of other Constitutional provisions, most certainly the Due Process and Equal Protection Clauses.

The First Amendment's Establishment Clause reads: “Congress shall make no law respecting an establishment of religion ... .” The Supreme Court held in Everson v Board of Education, 330 U.S. 1 (1947), that the establishment clause is one of the “liberties” protected by the Due Process Clause. From that point on, all government action, whether at the federal, state, or local level, must abide by the restrictions of the establishment clause.

In the words of the Court in Everson:

The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force 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... . Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'

The Free Exercise provision of the First Amendment to the Constitution provides that "Congress shall make no law … prohibiting the free exercise (of religion)." The Free Exercise Clause pertains to the right to freely exercise one’s religion. It cannot be disputed that in disallowing a Muslim to contract under Sharia law, which one would only do as an expression of Islamic faith, the government is interfering in a Muslim’s free exercise of religion.

The kinds of analysis which will shoot down State Ballot Question 755 under the Establishment and Free Exercise provisions of the Constitution include the fact that the law does not have a secular purpose, that its primary effect advances one religion and specifically inhibit another religion, and that it fosters an excessive government entanglement with religion. Further, the State doesn't even have a legitimate purpose in banning the use of Sharia law, except the bare desire to harm a politically unpopular group.

State Ballot Question 755 violates the Full Faith and Credit provision of the Constitution. The Full Faith and Credit Clause, Article IV, Section 1, of the U.S. Constitution, provides, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." The Supreme Court reiterated the Framers' intent when it held that the Full Faith and Credit Clause precluded any further litigation of a question previously decided by an Illinois court in Milwaukee County v M E White Co, 296 U.S. 268, 56 S. Ct. 229, 80 L. Ed. 220 (1935). The Court held that by including the clause in the Constitution, the Framers intended to make the states "integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin."

State Ballot Question 755 violates the Commerce Clause of the Constitution. The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Commerce Clause has been interpreted as a prohibition against states passing legislation that discriminates against or excessively burdens interstate commerce. To deprive Oklahoma courts of the ability to interpret and apply international law, especially with respect to contracts with companies and citizens of other nations, must be viewed as an impermissible burden on interstate commerce.

State Ballot Question 755 violates the Impairment of Contracts Clause of the Constitution. Article I, Section 10 forbids any state from passing a law that retroactively impairs the obligation of contracts. Such contracts would include wills and commercial and more private contracts between parties in which the parties agree that Sharia or other principles of international law will be applied for purposes of interpretation and/or enforcement.

There are just so many Constitutional problems with the State Ballot Question 755 that I just cannot see how it can withstand scrutiny.

On a personal level, I see the passage of the new law as an expression of Christian counter-Sharia, stemming from a mindset of fear and panic, which has been stoked by a fascist leaning media and politicians into a horrific and wholly un-American anti-Muslim frenzy.

The Nazi horror was theologically rooted in the fiction of the divinely wrought Aryan Nation. The American fascist movement is theologically rooted in the fiction of divinely wrought American Exceptionalism. As I perceive fascism, one of its core tenets is that the demand for strident nationalism trumps civil rights, especially the civil rights of minorities whose very existence has been identified (by the state) as threatening to the well being of the divinely inspired nation.

The Nazis, identified the primary threat to the Aryan nation as coming from the Jews, the Gypsies, the handicapped, from non-Aryans in general, and from those who would seek to protect and defend them. For contemporary American fascists the current threat to our nation has been identified as Muslims, homosexuals, illegal aliens (and maybe still from blacks, Jews and Catholics, as in former years), and those who would seek to protect and defend them.

Finally, I believe that the Republican Party is being led by neo-fascists and has begun promulgating a fascist agenda. Having identified the threat from certain minorities within our boarders, their objective is to vilify them at every turn and see to the systematic dismantling of their civil and human rights, and that this targeting against internal minorities is being undertaken in the name of patriotism (the Patriot Act) and the idolatrous belief in American Exceptionalism.

John

A Legal Analysis of Prop 8 Decision (John McCauslin, Guest Post)

As a follow up to our recent discussion of the consequences of the recent decision overturning California's Prop 8, which defined marriage as between a man and a woman, thereby excluding homosexuals from being granted marriage licenses -- and therefore the rights and benefits ordinarily provided to heterosexual married couples -- I asked John McCauslin, an elder in the congregation I pastor and a practicing attorney, to offer a legal analysis of the decision.  Now, this is a legal analysis of the reasoning behind the decision.  It is not, a theological analysis.  Ultimately, when it comes to marriage itself, congregations will have to make the decision as to whether or not they will participate/acknowledge these marriages.  We've had conversation about these other issues, so what I'd like to do here is simply limit the conversation to the legal implications of the case.  The issue itself emerges out of a broader conversation about how the Constitution is interpreted and applied.  I appreciate John's willingness to try to distill this issue into a rather brief 1200 words.  (Again, I'd like the conversation to focus on the legal issues, and not rehash the debate as to whether same sex marriage is contrary to Scripture).

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Same Sex Marriage and the Law

By John McCauslin, JD

Two same-sex couples, including Kristin PERRY, applied for marriage licenses, each in different California counties and were turned down because of the requirement adopted into law by Proposition 8, passed by referendum in November of 2008. Specifically, Proposition 8 enacted a law which provides in its entirety: ”Only marriage between a man and a woman is valid or recognized in California.” Before the law was enacted over 18,000 same-sex couples had been granted marriage licenses by the State of California.

In May of 2009, the couples sued the county clerks, the state Department of Health, the state Attorney General and the Governor, Arnold SCHWARZENEGGER. The case was captioned PERRY v SCHWARZENEGGER, and filed and tried in the United States District Court for the Northern District of California. After a trial in January of 2010, on August 4, 2010, Chief District Court Judge Vaughn R. Walker, issued his Opinion and Order. While the judge is openly gay and in a long term gay relationship, the potential for bias is unavoidable, since the only other judges who could have hear the case were heterosexual, and thus just as predisposed, or not, to reflect a bias.

Plaintiffs argued that their rights to due process and equal protection under the law were violated by Proposition 8. The government defendants refused to defend. The proponents responsible for getting Proposition 8 on the ballot and getting it passed were allowed to intervene as defendants and mount a legal defense of the new law.

While plaintiffs called eight lay witness and nine highly qualified experts, defendants were able to call only two witnesses, both of who were disqualified as experts by the court. Defendants’ primary “expert” David Blankenhorn, is an anti-gay activist with no credentials or formal training as to the history, sociology, psychology, or the legal or ethical issues regarding same-sex marriage. He testified that his study of the effects of same-sex marriage involved “read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it.”

Blankenhorn also testified that "marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be “a victory for the worthy ideas of tolerance and inclusion.”

Judge Walkers’ opinion included 80 specific “Findings of Fact” detailing the evolution of the civil institution of marriage, the history of invidious discrimination suffered by gays and lesbians generally and in regard to the institution of marriage, and documenting the evidence that gay marriage will not only cause no harm to the institution of marriage, but will result in wide ranging social and economic benefits to gays and lesbians and to society at large.

In its Due Process analysis, the court considered the evidence as it applied to two basic questions: (1) does the ban on gay marriage constitute a denial of the right to marry, and (2) does the state have any lawful basis to effectuate such a ban. Based upon the evidence presented the court found that Proposition 8 denies members of same-sex couples the right to marry a person of one’s choice, and that the state has no legitimate interest in denying this right to members of same-sex couples and therefore it violated the plaintiffs’ Constitutional rights to Due Process.

In its Equal Protection analysis, the court determined that Proposition 8 was discriminatory based on gender and sexual orientation. Based on its factual findings, the court ruled that the state had no lawful basis to enforce such discrimination. The court ruled that the state had no compelling interest, and in fact no rational basis, for allowing opposite sex couples to marry the person of their choice, while denying members of same-sex couples that same right. The court also ruled that the California provision for parallel (echos of “separate but equal” institution of “domestic partnerships” was not an adequate legal substitute for the right to marry because “marriages” and “domestic partnerships” carried very different social and economic consequences.

In one of the most revealing quotes from the decision the court ruled:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Because the government defendants declined to advance such arguments, proponents (of Proposition 8) seized the role of asserting the existence of a compelling California interest in Proposition 8. (pp116-7)

In declaring Proposition 8 unconstitutional, the court concluded:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.

Of significant importance, is the fact that the court based its ruling on findings of fact instead of exclusively on the judge’s interpretation of the law. Appellate courts are far more reluctant to reverse a decision based on factual findings than a decision based on legal merits.

More recently it has been noted by Judge Walker that in Perry v Schwarzenegger the proponents’ appeal may be thrown out because the proponents have no legal standing to claim an appeal. Federal procedural law limits the class of those who may appeal a ruling to include only those litigants who are adversely affected by a ruling or those who may be compelled to enforce such a ruling. The court has already made a finding of fact that heterosexuals will not be adversely affected by same-sex marriage. Therefore, proponents can show no adverse effects of the ruling on themselves. Because the proponents are not part of the state government of California they will not have any role in enforcement. And it appears they have no lawful standing to appeal.

People should be aware that this case is the second salvo in a war by the courts against crusading right wing religious groups seeking to subvert the law to their own purposes. In early July of this year a federal judge in Boston overturned part of the Federal Defense of Marriage Act (DOMA), declaring unconstitutional its ban on federal recognition of same-sex marriages that are otherwise legal at the state level. The case, Gill v Office of Personnel Management, was brought by gay or lesbian couples, who were legally married in the state of Massachusetts but, because of DOMA, had been denied various benefits such as “joint tax filing, social security, health and life insurance for the spouses of federal employees”to which heterosexual couples are entitled. United States District Judge Joseph Tauro rule that the DOMA impermissibly violated the Equal Protection Clause of the Constitution by creating two unequal classes of married couples.

These two decisions send a clear signal to anti-gay Christians that Federal courts are not going to tolerate attempts by religious groups to subvert and manipulate the law to punish and otherwise disadvantage people and groups with whom they disagree.

John McCauslin is an Elder at Central Woodward Christian Church (Disciples of Christ) and a practicing attorney in the state of Michigan.