Oklahoma's Shariah Law Ban -- Sightings

I have opined before about the recent passage of an Oklahoma law banning the use of international law and sharia law in court procedures in that state, and I published a guest posting by a member of my congregation who happens to be a lawyer.  We return to that issue again this morning.

The question that this action, which was passed by 70% of the voters, raises -- concerns why voters made this decision, and why Oklahomans aren't alone in their desire to do so.  Make no mistake, there are terrorists who take inspiration from their interpretation of the Qur'an and from other Islamic teachings, and women are mistreated in a number of Muslim countries -- but one could ask whether this is because of Islam or other cultural dynamics present in those countries.  But that's for another day.  The question is why Oklahoma's voters acted as they did?   Is it fear?  Hatred?  Ignorance?  Insanity?  That is, are Americans losing their minds?   And a further question -- do acts like this not play into the hands of extremists?    Well, Martin Marty has chosen to address some of these questions in today's Sightings column.  As usual, this is worth considering.

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Sightings 12/6/2010

Oklahoma’s Shariah Law Ban

- Martin E. Marty

In late November Judge Vicki Miles-LaGrange issued a permanent injunction on the “Oklahoma shariah law ban” leaving Oklahoma at least temporarily unsaved by the “Save our State” Question 755. The constitutional amendment had been approved by 70% of the state’s voters on November 2. Sightings blinked when debates over the proposition began. It seemed too outlandish to dignify. Next Sightings squinted and filtered out headlines about the post-election debates. To avoid losing Oklahoma subscribers from Oklahoma by insulting them? Hardly: voters like the Oklahoma majority presumably live in all states.

The debate does not die down simply because of the permanent injunction. Readers who will scan the hundreds or thousands of retrievable documents discussing the issue in print or on the web will find that the early framework for discussion revolved around two questions: was this measure inspired simply by hate or simply by fear? The measure would “forbid courts from considering” international law or, the point at issue, using Islamic religious law, known as shariah, which the Oklahoma amendment defined as being based on the Qur’an and the teachings of the Prophet Mohammed.

The first explanation for the vote is fear. Fear of “the other” is so natural, so cultivated, and so exploited in recent years that, in the eyes of many, it can account for much of the support for the measure. Next, hatred of “the other,” in this case of Muslims and Islam is so patent, so palpable and contradictory to the norms about truth-telling and love held by the Christian (and other) religious majorities of the state that it can also account for the support.

More recently, however, two other factors have been at play in diagnoses. One is simply ignorance, not about terribly terrible actions against women in many shariah-based polities, for example. Innumerable stories of inhumane actions are reported domestically even though the shariah laws on which these actions are based are enforced in far-away Islamic-ruled countries. Instead, what drove Oklahomans to vote for the ban is ignorance of the nature of religious law as it is or can be effected in the United States. Thus Catholic canon law has numerous strictures against many kinds of actions by Catholics. Halakha, the Jewish code, starts with 613 laws, which are supposed to be binding on Orthodox Jews, but it holds no base or potential for civil legal action.

Some religious leaders, of course, grounded in their canon law and halakha may work to influence the mentality of voters, hoping they will vote in ways congruent with those of the religious body. But they have to persuade voters to render such preferences in civil law, something that the 30,000 Muslims of Oklahoma, whose population is 3.7 million, are not likely to achieve, even if any of them wanted to do so. (Those Muslims often include “your” Oklahoma doctor, nurse, engineer, accountant, and good neighbor.)

The other supposition by analysts of this ban is insanity. That is an uncharitable judgment, but as columnist Leonard Pitts put it, “we are gathered here today to mourn the loss of America’s mind,” a loss exemplified in the Oklahoma argument and vote. “Thoughtful people ought to be alarmed,” for these actions based on fear, hate, ignorance, or insanity give victories to terrorists, Jihadists, and others, who want us to fear. Pitts writes that they can say “America is scared stupid. Mission accomplished.” Shariah won’t do us in, and canon law won’t save us. Civil law and civil citizens, also in Oklahoma, can help do so.

References

Bill Mears, “Judge issues permanent injunction on Oklahoma Sharia law ban,” CNN, November 29, 2010.

Leonard Pitts, “Oklahoma paranoia strikes deep,” Miami Herald, December 3, 2010.

Omar Sacirbey, “Oklahoma Muslims Wary after Shari’a referendum,” The Christian Century, November 4, 2010.

Martin E. Marty's biography, current projects, publications, and contact information can be found at www.illuminos.com.

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

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

Sharia in America? Oh NO!

In the recent elections which saw a conservative backlash against all things moderate and liberal (remember most of the Democratic seats lost in Congress will be so-called Blue Dogs, many of them Pro-life Democrats, who like Bart Stupak saw Health Care Reform as being essential but were called baby-killers even though they were strongly anti-abortioin -- but that's another debate).   One of the measures that passed in this election cycle was a restrictive piece in Oklahoma that would forbid Oklahoma courts from considering international law or Sharia in their findings.  70% of the voting populace supported the measure, and its likely to crop up other places.  A judge has stayed its implementation pending appeals (I believe) on the basis that it likely conflicts with the Constitution.

Listening to some analysis recently it was pointed out that this measure is first of all discriminatory because courts take into consideration all the time Jewish and Christian and other religious laws and teachings in settling estates and other legal matters.  The same would be true of estate plans for Muslims, who use their own religious teachings to guide implementation of their wills and estates.  This would preclude that possibility.  There is, of course, another problem with the law since it would essentially abrogate treaties and other agreements that are based in international law.  Businesses in Oklahoma may see a chilling effect as companies decide that this isn't a good climate to do business.

So, why this new law?  Well there seems to be this fear that Muslims will take over the country if they are given any place in society.  Give them an inch and they'll take a mile.  That's why there is an effort to unseat Keith Ellison, the first Muslim to serve in Congress.  It would seem that many Americans want to make the country a Muslim free zone.  But how does this square with our own Constitution, which guarantees Americans the freedom to practice their religion as they please.  Of course, US Law always trumps religious law, if those teachings/practices conflict with the law.  Thus, we can't follow the teachings of Deuteronomy and stone our kids if they back talk or eat too much (Deut. 21:18-21).  We've figured this out, and can do the same with Sharia, which in any case isn't an established set of laws, but a variety of laws, rules, and regulations that vary from culture to culture.  The reality is that only a few rather radical Muslims would even think about imposing such a requirement on the whole populace.  

So, what's the problem?    Is this not another example of a growing anti-Muslim sentiment in America?  Is this fear any different from lingering fears that have suggested that Jews are trying to control the nation by controlling the banks and other levers of society?  By singling out a particular religion, this law has abrogated the first amendment rights of Muslims in Oklahoma to have their own practices taken into consideration when in the legal system.  We wouldn't think of doing this with Christians or Jews, but it apparently is okay for us to treat Muslims in this way.  Or, is it?