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