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By K. Hollyn Hollman, BJC General Counsel

For years, defenders of religious liberty have noted the challenge of ensuring that Muslims in America have the same rights as others. While our religious diversity is often celebrated as a significant strength of our nation’s character, it also tests our commitment to the ideal of religious freedom for all.      

Recent controversies over the right to build houses of worship and community centers are demonstrative. Unfortunately, fear rather than fairness often motivates the majority’s response to minority religious traditions. 

The latest example is in preemptive initiatives seeking to avoid the influence of Islam. Last November, Oklahoma voters passed a ballot measure known as the “Save our State Amendment” that would amend the state constitution to protect against the perceived creeping threat of Islam into the judicial system, despite the fact that the U.S. Constitution protects against government establishments of religion. The Oklahoma measure provided that courts “shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.”

The amendment stated that Sharia Law is Islamic law, based on the Quran and the teachings of Mohammed.

Not surprisingly, the provision was immediately challenged. The record showed that Oklahoma courts had not been straying from application of Oklahoma law in favor of Islamic law. In fact, it was undisputed that the amendment was purely preventive. There were no known instances of Oklahoma courts applying Sharia Law and yet 70 percent of the voters approved the amendment. 

A federal district court entered a preliminary injunction to stop the law from taking effect. In doing so, it cited one of the most famous U.S. Supreme Court passages about the relationship between the will of the majority and the constitutional rights of individuals. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” (W.Va. State Bd. of Educ. v. Barnette, 1943)    

The Oklahoma constitutional amendment, the court found, conveys official government disapproval toward particular religious beliefs in violation of the Establishment Clause. It also violates the Free Exercise Clause because it prohibits conduct because that conduct is undertaken for religious reasons without any compelling governmental interest at stake. As an example of the practical effect of the law, the court found that the plaintiff had made a strong showing that the amendment could prevent a court from fully probating the plaintiff’s will because it incorporated specific elements of the Islamic tradition.     

Despite the clear conflict with federal standards that protect against religious discrimination, Oklahoma is not alone. Several states are considering similar measures. In an attempt to avoid the constitutional problem, a Texas legislator has introduced a similar proposal but without the reference to Islam. It states that Texas courts “may not enforce, consider, or apply any religious or cultural law.” This effort is also misguided. While its ostensible target is evident, its reach is extremely broad, threatening the well-established practice of courts enforcing voluntary agreements between private parties, including those based on shared religious beliefs.     

Public policy has long encouraged the voluntary resolution of disputes between individuals, as well as between individuals and other entities. Courts will generally enforce such agreements, so long as they meet certain standards of fairness and do not result in a violation of the law. In fact, for some religious adherents in this country, it is a routine exercise of religious freedom to submit disputes to a religious tribunal and for civil courts to confirm their outcome.    

Religion will rarely unite Americans, but a commitment to religious freedom for all can. Our religious freedom depends on our willingness to protect the religious freedom of others. As our diversity increases, we should redouble our commitment to religious freedom, which serves all of us, or fear will erode our freedom.

This column originally appeared in the February 2011 Report from the Capital. Click here to view it as a PDF document.