As I noted last week, one of the stranger outcomes of this year's midterm elections (not stranger than California rejecting Prop 19, but still) was the success of an Oklahoma ballot measure that makes it illegal for the state's courts to even consider Islamic "sharia law." Opponents challenged the ban before the week was out. (It's almost like they expected Oklahoma voters to pass it.) Today, a federal judge granted a temporary restraining order banning the ban.
Awad v. Ziriax presents at least three interesting questions: (1) does the ban violate the Establishment Clause, (2) does it violate the Free Exercise clause, and (3) if Oklahoma voters are this xenophobic, how did somebody named "Ziriax" get elected? The plaintiff's motion suggests answers to the first two.
First, to pass muster under the Establishment Clause (which I guess I should mention is part of the First Amendment), state action must have a "secular purpose," a "primary effect" other than advancing or inhibiting religion, and must not foster an "excessive government entanglement with religion." Here, it is not too difficult to conclude that the measure's purpose was not secular because the guy who wrote it said so. Rep. Rex Duncan was quoted as saying that the measure was aimed at countering the "growing threat" that sharia law poses to Judeo-Christian principles, despite also conceding that no judge in Oklahoma has ever actually considered sharia law in making a ruling. "Oklahoma does not have that problem yet," Duncan said. "But why wait until it's in the courts?" Hey, can't be too careful.
It is also pretty obvious that the ban would require state courts to take positions on the actual content of sharia law, which the measure defined as being "based on two principal sources, the Koran and the teaching of Mohammed," so they can make sure to not use any of it. That will be fun to watch. Somebody should also tell Duncan that, whatever else they may include, "the Koran and the teaching of Mohammed" actually incorporate many of the Judeo-Christian principles he thinks he is protecting, so I guess courts can't consider those now, either. Awkward.
Second, the motion also argues that the ban violates the Free Exercise clause because it "burdens only conduct motivated by a disfavored religion." I'm not sure that is strictly true, if only because the stupidity of the ban is so ginormous that it would burden conduct motivated by Judaism and Christianity too, for the reason noted above. But it would almost certainly be true in practice. The plaintiff's example is his will, which directs that his funeral be carried out according to Islamic tradition, and which could not be probated under Duncan's ballot measure.
Surely someone will soon argue that the TRO is illegal because to issue it, the judge had to at least "consider" the idea of sharia law, which is mentioned in the motion over and over. Didn't we just tell you not to do that? Case dismissed! Or not.