I had the chance to read the opinion last night, so I should be able to offer some takeaways today.
First of all, I wholly agree with the 10th Circuit’s opinion that the “Save Our State” Amendment is likely unconstitutional under the Establishment Clause because it only prohibits the use of one form of religious law regardless of whether it is being called upon in civil or criminal court. It enshrines this notion into the Oklahoma Constitution that Islam is somehow an inferior religion which should not be allowed to exist in Oklahoma.
The Oklahoma Attorney General’s office argued that the word “cultures” in the amendment should be interpreted as “religions”. But as the 10th Circuit noted, making this substitution implies that religious law deemed to be part of Oklahoma’s local culture would be acceptable in Oklahoma courts, while the laws of other religions would not.
Now, I’m not saying that religious law should be an allowed criminal defense. Religious laws should not be singled out (especially by religion) as to whether or not they are a valid criminal defense. What the legislature should have done was offer an amendment to prohibit cultural defenses in general (which would prohibit such defenses as used in People v. Chen, People v. Moua, and People v. Kimura).
But the problem with SQ 755 is that it also prohibits the use of Sharia Law in interpreting civil disputes that arise from an agreement which is based on Sharia Law (such as a Will or a private contract), as well as prohibiting Oklahoma courts from enforcing a foreign judgment (such as Panama Process, S.A. v. Cities Service Co., 1990 OK 66, 796 P.2d) arising from an international contract calling for the use of the laws of another country for interpretation of the contract.
The only reason that “Sharia Law” was specificially cited in the text of the amendment was to play political games for the upcoming elections. Vote against it, and you’re accused of supporting criminal immunity for “honor killings”.
The Oklahoma Attorney General’s office argued that the compelling state interest furthered by the amendment is simply an “interest in determining what law is applied in Oklahoma courts.” But the State could not identify a single problem for the amendment to solve. As was pointed out by many of us who were opposed to SQ 755, this amendment was a “solution” looking for a problem.
Furthermore, the Oklahoma Attorney General’s office makes the claim that the “will of the people” outweighs any harms done to those affected by legislation. This is an argument that we see come up time and time again by the 70% of the voters of the state of Oklahoma that supported SQ 755. But I think that shallow, arrogant, and ignorant argument was addressed quite well in the opinion.
I believe that the 10th Circuit is right to uphold the injunction against SQ 755. What is important is that rights protected by the Constitution remain protected, whether you agree with those particular rights or not. Apparently, 70% of Oklahomans do not agree that the same Constitutional protections should apply to those whose religion they do not agree with.
But to say that the will of the people trumps liberty (especially when that liberty is already protected by “the will of the people”) simply because a majority of voters supported a measure is like having two wolves and a sheep take a vote on what’s for dinner.
By the way, as Jay Norton pointed out on yesterday’s post, there is a good analysis of the severability of the part about Sharia Law and if the Attorney General failed to adequately defend the amendment over on The Volokh Conspiracy.