Posted On: January 11, 2012 by Mark A. Eskenazi

Sharia Law: Constitutional Ban or Bane?

US Court of Appeals, Tenth Circuit: Awad v. Ziriax

On November 2, 2010, Oklahomans voted on a proposed constitutional amendment. The final ballot measure read as follows:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teachings of Mohammed. [Emphasis the court’s.]

The amendment passed with a 70% majority vote. The final step to becoming law is certification of election results by the State Election Board, a procedural process to be completed the Tuesday after election Tuesday.

To paraphrase the movie title, If it’s certification Tuesday, this must be Belgium, because it certainly isn’t Oklahoma.

Two days after the people spoke, Muneer Awad, Executive Director of the Oklahoma Chapter of the Council on American-Islamic Relations, sued the members of the Oklahoma Election Board to prevent them from certifying the election results. The District Court granted a temporary restraining order, then a preliminary injunction. This appeal followed.

The Court of Appeals found that Mr. Awad had standing to challenge the constitutional amendment, that the issue was “fit for judicial review” and that, even applying a strict standard of scrutiny, Mr. Awad “is likely to succeed on the merits.” The problem the court could not ignore: “The amendment bans only one form of religious law—Sharia law.”

Quoting language from an earlier Ninth Circuit decision, the court put it this way: “[W]hen a law that voters have approved ‘affronts the federal Constitution—the Constitution which the people of the United States themselves ordained and established—the court merely reminds the people that they must govern themselves in accordance with the principles of their choosing.’”

For better or worse, we’re stuck with the rules of the game we created. The Constitution protects everyone. Either it will continue to make this a great nation where freedom reigns, or it will protect freedoms that will be our undoing.

We’ve gotten the balance right for over 200 years. There’s no reason to think we can’t do it for another 200, notwithstanding the latest challenges to our way of life and the fear that so often overshadows the debate.

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