Oklahoma's anti-Sharia law amendment is not okay, according to a panel of judges on the 10th Circuit.
Attorneys for the state argued the "Save Our State Amendment" only bans judges from applying international law. But the amendment's language singles out Sharia law, specifically banning its judicial application.
One clause even allows state judges to apply "the law of another state of the United States provided the law of the other state does not include Sharia Law"
Based on this language, the 10th Circuit determined that the anti-Sharia law amendment discriminates among religions. Such laws violate the Establishment Clause unless they are "closely fitted to the furtherance of any compelling interest."
This constitutional test was devised by the Supreme Court in a 1982 case by the name of Larson v. Valente. Though it has yet to be overturned, the state of Oklahoma tried to argue that it is so rarely used that it is no longer valid law.
The 10th Circuit appeared to be slightly baffled by this argument. It explained that the test is so rarely used because "legislatures seldom pass laws that make 'explicit and deliberate distinctions between different religions.'"
This statement is notable in that it highlights the influence of the Supreme Court on legislators.
It's rare, but there are times when legislators knowingly consider unconstitutional laws. It's a symbolic gesture -- a protest against the current state of the law.
But most of the time, legislation is drafted with the courts in mind. The goal is to enact unchallengeable laws -- not laws that will cost hundreds of thousands of dollars to defend.
So in some situations, it's a good thing when no one cites a valid Supreme Court case. It means that legislators are listening and that they have drafted accordingly. Perhaps Oklahoma should have thought of this before passing its anti-Sharia law amendment.
- 10th Circuit: Amendment Banning Sharia Law is Not OK (Wall Street Journal)
- Establishment Clause (FindLaw)
- The Oklahoma Referendum Prohibiting State Courts from Applying International or Sharia Law (FindLaw's Writ)