To paraphrase The Producers, yesterday a three-judge panel of the 10th Circuit Court of Appeals told the state of Oklahoma, “We find your anti-Sharia law incredibly unconstitutional.” The court was tasked with having to uphold a federal district judge’s injunction preventing the state from even certifying the results of the 2010 referendum in which over 70 percent of the Sooner electorate voted for a constitutional amendment forbidding state courts to “consider…Sharia law” in their deliberations. That’s a high procedural bar but, in the judges’ view, the injunction sailed over with ease.
They found that the plaintiff-appellee, Muneer Awad, was likely to prevail in his claim that the law violated the U.S. Constitution’s ban on religious establishments by singling out Islamic law for disfavor, thereby failing to uphold the “[n]eutral treatment of religions” that is, according to prevailing Supreme Court doctrine, “the clearest command of the Establishment Clause.” They saw no reason even to address his Free Exercise claim, but there’s little doubt that Awad would have been found likely to prevail there too. Nevertheless, Attorney General Scott Pruitt says he will “continue to defend” the state’s position in court. Look for summary judgment.
Given so plain an effort to enshrine religious prejudice in law, it’s not surprising to find, among those filing briefs on behalf of Awad, the New York Bar, Americans United for Separation of Church and State, the Baptist Joint Committee for Religious Liberty, the Interfaith Alliance, and three Jewish groups: the ADL, the American Jewish Committee, and the Union for Reform Judaism.
But there’s nothing from Orthodox Jewish outfits like Agudath Israel, whose members have most to lose from a law that bars courts from taking cognizance of religious law. And where are those paladins of religious liberty, the Becket Fund and the American Center for Law and Justice? Leave us not be disingenuous. They would get too much grief from their anti-Islamic backers to risk taking a stand on behalf of Muslims in court. Remember when Richard Land folded his tent and slunk away from an interfaith coalition supporting the right of Muslims to build mosques? I guess we should at least be grateful that Agudath, Becket, and the ACLJ didn’t see fit to join Judge Roy Moore’s Foundation for Moral Law (“Defending our inalienable right to acknowledge God”) and file a brief in support of the State of Oklahoma.
Meanwhile, as all eyes turn to South Carolina, it is devoutly to be hoped that the several GOP presidential aspirants are asked about the Oklahoma decision. Speaking last year at the American Enterprise Institute, Newt Gingrich proposed “a federal law that says that no court anywhere in the United states under any circumstance is allowed to consider Shariah as a replacement for American law. Period.” Last Spring, Rick Santorum insisted that Sharia “was incompatible with American jurisprudence and our Constitution.” Do they think the10th Circuit made a mistake? And what about Mitt Romney? Will he, as a member of a religious minority that suffered serious religious persecution in American history, stand up for the court?