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Too Sooner For Sharia? Tenth Circuit Rules Against Oklahoma’s Anti-Sharia Law

• www.jonathanturley.org
We previously discussed the law passed in Oklahoma barring state judges from considering Islamic and international law in their decisions. Now the United States Court of Appeals for the Tenth Circuit has blocked the law. The three-judge panel upheld an injunction barring certification of Question 755. The decision has some important language for both standing and free exercise claims.

The case is Awad v. Ziriax, 2012 U.S. App. LEXIS 475 (January 10, 2012). One of the central issues was the claim that virtually no one could challenge the law — an increasingly (and disturbingly) common argument in federal court. In Awad, Oklahoma argued “ that Mr. Awad does not have standing because he has not suffered an actual or imminent injury . . . because the amendment has not taken effect or been interpreted by any Oklahoma court, Mr. Awad’s alleged injuries are necessarily speculative. They further contend that Mr. Awad’s assertion that he will suffer official condemnation of his religion is ‘personal opinion.’” Id. at *14. In upholding standing in the free exercise claim, the Tenth Circuit discussed cases including American Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010) and Catholic League for Religious and Civil Rights v. City and Cnty. of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc). The Court held that non-economic religious values are sufficient for standing, stating the

“Legislature did not simply adopt a non-binding resolution opposing the consideration or use of Sharia law in state courts, it proposed and the electorate agreed to enshrine such a prohibition in the state’s constitution. Mr. Awad is facing the consequences of a statewide election approving a constitutional measure that would disfavor his religion relative to others. The non-binding city resolution in Catholic League conveyed “a government message,” 624 F.3d at 1048. The Oklahoma amendment conveys more than a message; it would impose a constitutional command.”

 

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