| January 3, 2011

Oklahoma's Preemptive Strike on Sharia Law

In 2010 the Oklahoma Legislature placed on the ballot, and the voters approved, a constitutional amendment requiring that courts rely on federal or state laws when handing down decisions, and prohibiting them from using Sharia law or international law.

After passage, and before the election results could be certified, Muneer Awad, executive director of the Oklahoma chapter of the Council on American-Islamic Relations, filed a lawsuit in federal court claiming the measure was unconstitutional. United States District Judge Vicki Miles-LaGrange agreed, issuing a preliminary injunction against the certification of the passage of the measure. For now, the state election board will take no action certifying the passage of the amendment. According to Judge Miles-LaGrange, that is the way it should be because “[t]he very purpose of the Bill of Rights was [to ensure that our] fundamental rights ... depend on the outcome of no elections.”

And what “fundamental right” did the court identify to have been cast aside by an amendment that forbade state courts from considering Sharia law in the exercise of their judicial powers? Is Mr. Awad deprived of a fundamental right because the amendment would not permit a state court to judge him according to Sharia law? Is it a fundamental right in the United States that one must be judged in a civil court according to the law of his religious faith? The district court made no such finding. Nor did Mr. Awad make any such claim. And for good reason. There is no constitutional right in America to be adjudged by the law of one’s personal religious faith. In a nation governed by Sharia law, however, one’s personal religious faith determines one’s legal rights.

Sharia: Identity Law

Mr. Awad said he was motivated to file his lawsuit claiming violations of the First Amendment guarantees because, as an adherent of Sharia and Islam, he was bound by his religious duty “to respect the law of the land.” Relying on contemporary judicial interpretations of the constitutional prohibition of an establishment of religion, Mr. Awad contended that the amendment disallowing courts to consider Sharia law was unconstitutional because it sends a message of disapproval of his Islamic faith. The no-establishment clause, Mr. Awad argued, requires the state to be strictly “neutral” about “religion,” lest adherents of minority faiths be inhibited in their religious practices. Mr. Awad also asserted that under the First Amendment free-exercise guarantee, he is protected against any official government action that “discriminates” against his Islamic faith. Thus, he insisted, the newly minted amendment that would ban Sharia law from the state courts was unconstitutional because it made Mr. Awad feel like a second-class citizen.

Under Sharia law in Islamic countries, however, adherents to minority religious faiths—such as Christianity or Judaism—are in fact second-class citizens (dhimmis). They are forbidden to possess arms, own land, or defend themselves against a Muslim, and are otherwise deprived of the liberty and property rights enjoyed by adherents of the approved religion. Moreover, any individual who believes and lives according to a faith—other than the officially established Islamic one—is not merely “disapproved,” but is subject to the death penalty. Thus, it has been recently reported that a Christian in Afghanistan has been imprisoned for apostasy and faces a court hearing where it would be demanded that he renounce his Christian beliefs or be put to death.

No wonder Mr. Awad based his claim against religious discrimination upon American constitutional law, rather than upon Sharia law. Under the latter, if a member of a minority religious faith, Mr. Awad would have no such legal protection.

Sharia: Totalitarian Law

The conflict between Sharia and American law is even more pronounced when measured by the jurisdictional principle underlying the First Amendment religion clauses. Both the prohibition against a law “respecting an establishment of religion” and a law “prohibiting the free exercise thereof” are based upon a God-given jurisdictional limitation on the exercise of civil power.

In his 1785 Memorial and Remonstrance Against Religious Assessments, James Madison explained that every man owed certain duties that were subject to the exclusive jurisdiction of God to the exclusion of civil government. This “unalienable right” to freedom of conscience, Madison argued, required “every man who becomes a member of any particular Civil Society, do it with a saving allegiance to the Universal Sovereign.” Thus, the First Amendment religion clauses were designed to secure a “separation of church and state,” that is, to deny to the state any power to enforce any duty owed exclusively to God, and to shut the door on any person or organization that would use state power to enforce any duty owed exclusively to God.

Sharia law does not recognize any such jurisdictional separation. Indeed, “separation of church and state” is antithetical to Sharia law. Sharia law is a totalitarian system—”all-embracing”—“compris[ing] all the commands, prohibitions, and recommendations given by God in respect to human conduct, and includes on an equal footing rules for prayer and rules for contract, matters punishable by death and matters punishable by inner contrition,” as Roy Mottahedeh points out in The Mantle of the Prophet. Thus, under Sharia law, the “sword” of the state is not only a permissible means, but an obligatory one, to enforce any and all legal, moral, and religious duties, including the imposition of the death penalty for apostasy and blasphemy. According to the original meaning of the First Amendment guarantees, then, the amendment banning Sharia law from the exercise of state judicial power is not only constitutional under the no-establishment and free-exercise guarantees, but constitutionally required by those very guarantees.

Sharia: A Clear and Present Danger

Prior to the amendment’s passage, the state’s leading newspapers, The Oklahoman and the Tulsa World, urged rejection on the ground that it was “unnecessary.” Oklahomans were told that their judges, unlike those in places like New Jersey (where a judge had relied on Sharia law to deny a woman’s request for a restraining order against a physically abusive husband), are not going to stray from the nation’s Judeo-Christian underpinnings.

To be sure, Oklahoma’s political and legal culture is more conservative than what is found on the east and west coasts. But even in the middle of the country there is a significant risk that the judicial mind may be seduced by the multicultural and transnational spirit that has penetrated our institutions of higher education, including the nation’s law schools. The battle among the current justices on the United States Supreme Court is evidence that the pernicious influence of foreign law has already taken a foothold. Indeed, under the philosophy of a “living constitution,” courts are prone to change the law to meet changing times.

Such is the case in the area of freedom of religion. Courts regularly substitute their own evolving values of “religious tolerance” in place of fixed principles of freedom of religion embodied in the First Amendment. Judges, both state and federal, have not only forgotten, but they have undermined, the Judeo-Christian premise upon which the First Amendment freedom of religion guarantees are founded. Indeed, Thomas Jefferson’s Preamble to his Bill for Establishing Religious Freedom is certainly not “religiously neutral”: “Well aware ... that Almighty God hath created the mind free, and manifested his Supreme will that free it shall remain ... That all attempts to influence it by temporal punishments or burthens ... depart[] from the plan of the holy author of our religion who being Lord of both body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by its influence on reason alone …”

Today, we are in danger of losing this legacy of liberty.

Have the people of Oklahoma acted too hastily? Madison would not have thought so. Writing in support of Jefferson’s bill, Madison contended: “[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it.”

In many parts of Europe, Sharia law has already taken hold and the issue is already entangled in precedent. Oklahomans have acted decisively to prohibit the exercise of state judicial power when based upon consideration of the tenets of a false religious faith that would rob the people of their inalienable rights of life, liberty, and the pursuit of happiness.

Herbert W. Titus, a cum laude graduate of the Harvard Law School, is of counsel to the Vienna, Virginia law firm of William J. Olson, P.C. ( No stranger to Oklahoma, Mr. Titus taught law at the University of Oklahoma School of Law (1964-66) and at the O. W. Coburn School of Law, Oral Roberts University (1979-82). He is co-author of a November 16, 2010 amicus curiae brief in opposition to Mr. Awad’s motion.

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