Written by Don Byrd
In a friend-of-the-court brief filed yesterday with the 10th Circuit Court of Appeals, the Baptist Joint Committee joined other religious liberty advocates in arguing that an Oklahoma constitutional amendment dealing with Islamic Sharia law violates the Establishment Clause. The brief was also signed by the American Jewish Committee, Americans United, The Anti-Defamation League, The Center for Islamic Pluralism, The Interfaith Alliance, and the Union for Reformed Judaism.
The amendment’s dual specific references to Sharia law – and to no other religious tradition – have the unambiguous effect of communicating official disapproval of Islam. That effect is only underscored by the campaign to pass the Save Our State Amendment – a campaign that, again and again, focused on the need to combat a threat that Muslims and Islamic law supposedly posed to Oklahoma.
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[T]he Save Our State Amendment is not narrowly tailored to a compelling government interest. To the contrary, it is devised to combat a problem that Oklahoma has never even encountered – and it does so in a manner that brands members of a tiny religious minority as pariahs.
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Any argument that the Save Our State Amendment passes constitutional muster because its purpose is to target Sharia, rather than Islam per se, misses the point. The ballot title specifically defined Sharia as “Islamic law.” And under the amendment, consideration of any Sharia is categorically prohibited, without regard to its content. The only question is whether what is sought to be considered is Sharia – i.e., Islamic law. For purposes of the Establishment Clause, there simply is no meaningful distinction between a purpose of targeting Islam and a purpose of targeting Islamic law.
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If the Save Our State amendment takes effect, official disapproval of Islam will be written into the principles an Oklahoma court is to apply in each and every case when determining the rules of decision. With official disapproval of Islam so enshrined, many Muslims inevitably will perceive that, whatever the substance of their particular cases, the courts will not afford them equal treatment. As a result, they may well become more reluctant to make recourse to the courts in the first place. It is hard to imagine any setting where official disapproval of one religion would provide greater cause for alarm.
A district court judge entered an injunction halting the amendment after finding it likely violates the Constitution. This brief asks the 10th Circuit to affirm that ruling. The case is Awad v. Ziriax.
