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? 

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. 

Ecclesial Implications of Marriage Equality

If, as I believe, the pendulum has swung in the direction of legalizing the marriages of gays and lesbians, the church will be forced to wrestle with its implications.  I've invited John, one of our frequent commentators and an attorney, to write a legal analysis of the Prop 8 decision.  From what I've been reading, its unlikely that the appellate courts will overturn the District Court ruling on legal grounds.  It is, therefore, likely that the case will go to the Supreme Court.  Should they hear it -- and generally that means that four justices agree to hear it -- then it will be interesting to see where this goes.  If things go as they generally do, the deciding vote will be Anthony Kennedy.  If this ruling stands, and it just might do so, then it has implications for the entire country.  If upheld, it could very well overturn gay marriage bans across the country.  Now there could be an effort to enshrine traditional marriage into the Constitution, but I don't think that this will fare well.  Amendments to the Constitution take a lot of time and effort, and the cultural trends are working against such an eventuality.

Therefore, I believe that the ball has been effectively placed in the court of the church (and other religious communities).  Although the legal ramifications could mean that the "state" could no longer refuse to grant marriage licenses to same sex couples, and it could lead to the overturning of the "Defense of Marriage Act," which denies recognition to same sex couples on a statutory basis, this doesn't mean that churches have to recognize such marriages.  Clergy do act as agents of the state when they perform weddings, but they're not the only possible agents. 

So the question looms -- how will the church respond?  At least initially, I expect most ecclesial bodies will continue business as usual.  With few exceptions, most Christian denominations do not recognize gay unions of any kind, including marriage.  My own denomination, the Disciples of Christ, has taken no official position, so that really leaves it up to local congregations.  As for my congregation, we are only now beginning conversations about these issues (not just gay marriage, but homosexuality and the church in general).  We've not taken a position, and it is my stated view that I will not participate in such a marriage ceremony until the congregation has come to a consensus on the issue.  At this point, I simply don't know where the congregation will come out on this issue.  I know that there is openness, but traditions and cultural mores die very slowly, if at all.  Tradition may not be a useful argument in the court of law, but it is in the church. 

So, I'd like to open up the discussion as to what the implications for the church might be.  Let me put a caveat here -- I'd rather that we not reargue the question of whether or not Scripture casts homosexuality in a negative light -- we've had this discussion.  I'd rather not have this be about the legal aspects either -- hopefully John can shed light on that question.  What I'd like for us to do is have a "civil" conversation that wrestles with the implications for the church if Prop 8 is declared unconstitutional, which might make it legal across the vastness of this nation for people to marry same sex partners and receive all the rights and benefits currently accorded to heterosexual couples.   

The March toward Marriage Equality

When Proposition 8, the amendment to the California Constitution limiting marriage to a man and a woman, passed, it did so by a rather narrow margin -- 52% to 48%.  Opponents to same sex marriage received tremendous financial support from religious groups, especially the Mormon Church.  This amendment served as a response to an earlier California Supreme Court ruling that overturned bans on same gender marriage because they were inherently discriminatory and akin to bans on interracial marriage, which had been overturned in California by the Courts.  What is interesting about California is that it's easier to amend the constitution than pass a budget, and so needing only a simple majority, the voters reversed the court ruling.  That effort led to efforts to overturn the California law by taking it to federal court and arguing that this ban stands contrary to the "Equal Protection" clause of the U.S. Constitution.

Leading the challengers to the law was an interesting pair of attorneys -- two men who faced off against each other in 2000 before the Supreme Court.  The issue then was the 2000 Presidential Election, a case in which the Supreme Court stepped in and ended Florida recounts and handing the election to George W. Bush, even though Al Gore had won the popular vote.  Maybe you remember that.  Anyway, Theodore Olson, Bush's lead attorney in that case, would go on to be Solicitor General -- the position that Elena Kagan held until receiving confirmation yesterday as our next Supreme Court Justice.  Olson is a conservative, a republican, and an advocate for gay marriage!  Sometime back he wrote an important op-ed piece in which he argued for a "conservative case for same sex marriage."   In that piece he wrote:

When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.

So, earlier this week, arguing for the opponents to Prop. 8, his position was vindicated by the Court, when Federal Judge Vaughn Walker argued in his ruling that that tradition alone, including the presupposition that marriage fosters procreation,  is not sufficient to deny rights to one segment of society that is not accorded to another.  

I know that there will be much outcry about activist courts that overrule the will of the people.  Remember, however, that it was the "will of the people" that banned interracial marriage.  It wasn't the legislatures that overturned that discriminatory practice, but the Courts.   It was the will of the people that segregated buses, lunch counters, and schools.  It wasn't legislation that overturned these discriminatory practices, it was the Courts (only afterwards did the Civil Rights legislation get passed to affirm what the courts had already deemed appropriate). 

More important than the initial effects of this ruling are the longer term ones.  Remember that in that earlier election, the vote was rather close -- just a 4 point margin.   While California is considered more liberal than most states, there large swaths of the state that are fairly conservative.  In addition, the Roman Catholic Church and the Mormon Church have significant presences and they both actively backed Prop 8.  In addition, while Latinos and African Americans tend to vote Democratic, they also tend to be social conservatives.  Finally, while the trend in 2008 led to the amendment, recent polls suggest that the wind is at the back of those who support same gender marriage.  So, what's next?

Obviously this will be appealed, and expect it to go all the way to the Supreme Court.  My sense is that the Appeals Court will sustain the District Court judges ruling.  What will be interesting is whether the Supreme Court chooses to hear the case.  It may not choose to do so.  If it does choose to rule, then the question is -- where will Anthony Kennedy take his stand?  If it goes all the way and the Supreme Court rules in favor of the opponents of Prop 8, then we have a perfect storm.  If Prop 8 is ruled unconstitutional then so is every other marriage ban across the nation -- including federal ones.  I think that's what scares religious conservatives (and even many moderates and liberals -- remember that the President has expressed his own discomfort with gay marriage).     

The cultural wind is at the backs of those who support same sex marriage.  Society has become more and more accepting of gays.  In addition, it is becoming increasingly clear that homosexuality is not a chosen "persuasion," but a genetically defined orientation.  The judge in this case accepted as foundational the premise that this is not something that is either "chosen" or "changeable."  My sense is that among those under 40, the majority is not only accepting of gays, but supportive of gay marriage.  The idea that marriage is primarily designed to support procreation is no longer foundational.  We marry for love and companionship, with children as a secondary element.  Besides, with adoption and artificial insemination  there are other avenues for creating families. 

If society is moving in this direction, the religious community seems to be somewhere behind the curve.  It will be a long time coming in Roman Catholic Churches, whose teaching reinforces the principle that marriage, sex, and procreation all go together (my uniformed assumption is that the Orthodox churches would be somewhere in the mix here -- at least regarding the importance of tradition).  Most evangelical churches will stand back from it because they believe it is contrary to their reading of scripture.  Thus, that leaves more moderate to liberal Mainline Protestant churches.  We are, to this point, a mixed bag.  The United Church of Christ and the Evangelical Lutheran Church have taken the most progressive positions.  Disciples of Christ have left these issues to congregations -- with discussion at the "level" of the General Church essentially staying out of the conversation.  What is important to note in all of this is that no church will be "forced" to marry anyone they don't wish to marry.  Although clergy fill a societal role in officiating at weddings (we sign off on the licenses), we are not required to act contrary to theology or beliefs.  

So, where will this lead?  Only time will tell!