Marc D. Stern
In November, Oklahoma’s
voters overwhelmingly supported an amendment to the state constitution that
would ban state courts from applying sharia, the religious law of Islam.
That vote draws on old tropes in American religious and political history,
which are themselves more interesting than the law and the resulting lawsuit
challenging its compatibility with the U.S. Constitution.
amendment’s sponsors conceded that there is no imminent threat of sharia
taking over America’s courts—a point made in a pre-election story by
Nicholas Riccardi in the Los Angeles Times on October 29 headlined,
“Oklahoma may ban Islamic law: Backers say it isn’t a problem now, but why
wait?” Muslims called the bid a scare tactic.
Establishment and Free Exercise Clauses of the First Amendment preclude
states from imposing religious law on their citizens. An Oklahoma court
cannot tell Catholics or Jewish citizens seeking a divorce that their case
will be decided under canon law or halakha (Jewish law). Neither can it
require that parties involuntarily refer their cases to religious tribunals.
Moreover, federal constitutional law even prohibits courts from interpreting
religious law, as they are sometimes asked to do when a doctrinal split
emerges between a local church and a national body. Silliness, however, does
not make a law unconstitutional. Singling out one faith for regulation does.
Entirely unsurprisingly, a federal district court quickly issued a
preliminary injunction against enforcement of the provision on the ground
that it violates the most fundamental assumption of the U.S. Constitution’s
religion clauses—that government must treat all similarly situated faiths
identically. Since both Catholicism and (Orthodox) Judaism, to name but two,
also have bodies of religious law, but are not barred from recognition by
Oklahoma’s courts, the unconstitutionality of the provision is plain.
Oklahoma has nonetheless appealed.
Precisely because all institutions of government are forbidden to impose
religious law on non-consenting citizens—and hence the amendment was in
large measure unnecessary—it is a fair question whether plaintiffs in the
challenge can show they are hurt by it. There are uncommon but possible
applications, such as voluntary arbitration of a dispute under sharia law, a
religious freedom claim based on that law, or an agreement made pursuant to
the law of a nation applying sharia law.
ban can in any event be easily circumvented. For example, instead of
drafting a will that states that property should be distributed according to
sharia, the drafter can simply follow those rules in apportioning his or her
point about legal irrelevancy was made, paradoxically, by the proposition’s
legislative sponsor (a Republican), who criticized the outgoing (Democratic)
Attorney General for not forcefully raising an objection to the plaintiffs’
standing to maintain the lawsuit on the ground that the adopted language
accomplished nothing. Perhaps the charge is best understood as an indication
of the partisan nature of the anti-sharia effort, and it’s probably not
entirely an accident that the charge was carried in a November 8 story on
Fox News by Ed Barnes.
course, the real harm the amendment works is conveying an unmistakable
message that Muslims who observe sharia are not welcome in Oklahoma.
single article about the amendment cites any law professor as holding the
view that the provision is constitutional, though several University of
Oklahoma law professors are quoted as declaring the bill plainly
unconstitutional. This is not a reflection of bias by the reporters. I am
unaware of any law professor who thinks the provision defensible on the
merits, though there are professors who think the pending lawsuit is
premature or that the plaintiffs lack standing to sue.
In the late 19th century, evangelical Christians, in the face of
rising Catholic political strength, raised the specter of a Catholic
takeover. The 19th-century Catholic Church, by way of such papal encyclicals
as the 1864 Syllabus of Errors of Modernism, campaigned against many
of the most fundamental principles of American political life, notably the
separation of church and state. Protestants, led by President Grant and many
of the leading Protestant clergy of the day, responded by pushing for state
constitutional amendments (so-called Blaine Amendments, after the leading
proponent of such efforts) banning all state financial aid to religious
institutions. These efforts were in part sincere, and in part a wedge issue
to encourage Protestants to rally to the Republican Party to counter
rising Irish (read: Catholic) influence on
the Democratic Party (the Party, it was famously said, of Rum, Romanism and
neutral in form, these amendments were plainly aimed at the Catholic Church,
which was then vigorously campaigning for aid for its parochial schools.
parallels between the campaign to enact the Blaine Amendments and the
anti-sharia law effort are striking. First, each arose in the context of
political jockeying, and each was used to arouse proponents’ political base
against forces described as “alien” and “un-American.”
case of the anti-sharia amendment, these efforts were apparently successful.
The Republican surge in Oklahoma (they captured all branches of state
government) has been attributed to the sharia proposition on the ballot and
a late telephone campaign on its behalf by an organization committed to it.
several news stories and op-eds emphasized this point—one story, by James C.
McKinley, Jr. in the New York Times on November 14 even quoted an
Oklahoma Democratic legislator who had voted against placing the sharia law
proposition on the ballot and as a result faced charges of being a supporter
of extremist Islam in the election—the evidence for the proposition is
thinner than one would expect.
hard evidence showing that the issue pushed people to the polls was cited,
nor are there numbers pointing to an increase in voter turnout (as compared
to, say, the prior midterm elections). Riccardi’s Los Angeles Times
story did cite poll data indicating that support for the proposition soared:
from 49 percent in favor, 24 percent against, and 24 percent undecided in
July to an endorsement by over 70 percent of voters at the November polls.
Several stories did note that Newt Gingrich—who is testing the waters for a
2012 presidential bid—supported the anti-sharia amendments. So did Sarah
Palin, though less vociferously. This suggested to Marc Ambinder, writing in
the October Atlantic, that sharia could be a wedge issue with
Second, as was the case with Blaine Amendments, the targets of the
amendments were portrayed as alien and “un-American,” undermining core
American values, or, most tellingly, America’s Christian or Judeo-Christian
heritage. (In the case of Blaine, it had been America’s Christian heritage
only that was at stake, Catholics not being considered good Christians.)
idea was expressed in regard to Oklahoma most eloquently by that well-spoken
xenophobe, Pat Buchanan, in a syndicated column published in the Niagara
Falls Reporter (among other places) November 20: “The Amendment should
be seen as ‘a cry from the heart of America’ that we are and wish to remain
a Western nation, a predominantly Christian country and we wish to be ruled
by our Constitution.”
how seriously the Judeo-Christian point is taken is reflected in the pledge
of the American Center for Law and Justice—which typically opposes laws
restricting private parties’ ability to follow their religious beliefs—to
help defend the law and to draft similar, “more constitutional” legislation
for enactment in other states. Texas, Wyoming, and Arizona are now
considering such proposals, and, as Donna Leinward reported in a
comprehensive story in USA Today on December 9, other states as well.
the targets of these proposals react with protestations of their commitment
to accepting American norms, though in both 19th- and 21st-century
cases the targeted group displayed splits over how to Americanize.
Fourth, as Omar Sacirbey wrote on December 9 for the Religion News Service,
much of the support for the anti-sharia effort comes out of the evangelical
movement, with the American Center for Law and Justice taking a prominent
role. The director of Oral Roberts University’s Center on Israel and Middle
East Studies likewise supported the effort, according to a Huffington Post
blog by Christopher Brauchli on November 5. It is important to recognize,
however, that other evangelical groups and recognized evangelical clergy do
not appear to be part of this effort.
Fifth, though the point is not often made, neither 19th-century
opponents of Catholicism nor contemporary opponents of sharia law are
conjuring up a wholly non-existent threat. The Syllabus of Errors
directly targeted key Western political ideas central to American
constitutional thought. Only the willfully blind could deny that both around
the world and in small pockets of America, there are some Muslims intent on
imposing sharia law at least on all Muslims, if not on society generally.
context of modern America, the threat of this actually happening is
infinitesimally small, and in any event (as several writers note), does not
justify the discriminatory singling out of Islam in Oklahoma’s constitution.
But neither do the shortcomings in the amendment justify ignoring the stake
all Westerners have in the battle against these extremist efforts.
are, however, important differences between Blaine and anti-sharia law
amendments. As nearly all of the news stories and many of the critics of
Oklahoma’s amendment were quick to observe, there is almost no evidence that
sharia law is about to break out into American law. There was a
much-discussed New Jersey case involving a trial judge’s refusal to issue an
order of protection (and not, as several stories suggested, aborting a
criminal prosecution) to the wife of a Muslim couple subject to sexual and
physical assaults because the husband, in alleged reliance on his Pakistani
(Islamic) cultural background, did not believe his actions wrong.
refusal to issue an order of protection was quickly and decisively
overturned by an appellate court as opponents (but not proponents) are quick
to note. By contrast, mid-19th-century Catholics vigorously
insisted on their right to equal funding of Catholic schools, and they had
substantial political clout. Popes did indeed insist that separation of
church and state was a heretical idea. Popes are not marginal actors.
Even more importantly, although the target of the Blaine Amendments was
undoubtedly the Catholic Church, the adopted amendments were neutral in form
and therefore applicable to all faiths. No doubt, in the 19th
century the primary purpose of the Blaine Amendments was to target Catholic
schools and, to a lesser extent, Catholic social services agencies. In the
fullness of time, however, the neutral cast of the prohibitions has
restrained government aid to a wide range of faiths. The anti-sharia
provisions, by contrast, can never be applied other than to Islamic law.
widely observed, many other faith groups, including Orthodox Jews and
evangelical Christians, maintain their own systems of adjudication—not only
for primarily intra-faith disputes (say over ministerial fidelity to dogma)
but to the full range of human endeavors, including business and marital
disputes. These would, of course, be unaffected by Oklahoma’s amended
Pepperdine University Law Professor Michael Helfand pointed out in an
especially clear exposition published as a November 10 op-ed in the Los
Angeles Times that courts routinely enforce agreements to religious
arbitrations of this sort, provided they are the product of the voluntary
decision of the parties. As of this writing, the Texas Supreme Court is
considering the enforceability of a commercial agreement calling for
arbitration of disputes pursuant to sharia or Saudi law. Helfand underscores
that courts also police the results of such arbitration awards for
violations of fundamental public policies.
Several stories, including one by Gina Miller in the November 9 Dakota
Voice, made the point that such arbitrations have been for some time
allowed without evident harm in Great Britain. (A law review article by
Washington and Lee Law Professor Robin Fretwell Wilson, which appeared
during the 2010 election cycle, reaches a more ominous conclusion about the
situation in the U.K.)
Allowing such arbitration awards is, on the one hand, a reflection of the
liberal principle that people should be able to govern their affairs as they
choose, including by abiding by religious principles. On the other, the
liberal state is defined by the uniform rule of secular law binding on all
citizens equally. Had Oklahoma chosen to bar all arbitration, or all
arbitration applying non-Oklahoma law—as Ontario did a few years ago in
regard to family law in order to forestall Islamic law arbitrations thought
unfair to women—a different issue would be presented. Oklahoma, though,
chose to target one faith among many.
most salient difference between 19th-century anti-Catholicism and
contemporary anti-sharia efforts, though, is this: The anti-Catholic crusade
was endorsed by much of the national elite, beginning with the President of
the United States and much of the Protestant establishment. By contrast, the
21st-century elite for the most part treated the Oklahoma effort
with undisguised contempt. That was particularly true in the media.
Consider this roster: Clarence Page in his syndicated column of November 16,
2010; Roger Cohen in the December 6 New York Times; Garrett Epps and
Marc Ambinder, in the November Atlantic; Eugene Robinson in the
September 21 Washington Post; and editorials in the November 28
New York Times, the November 11 Los Angeles Times, and the
October 31 Newark Star Ledger, as well as in several Oklahoma papers,
including the November 10 Oklahoman. All were scathing in their
criticism of the proposed amendment.
biting column in the November 16 Washington Post, Michael Gerson,
President George W. Bush’s former speechwriter, made the important point
that the adoption of the proposition would hurt America’s efforts to improve
relations with the Islamic world.
powerful and cogent as the opposition voices were, they failed to persuade
almost three-quarters of the Oklahoma electorate. The point is not that
voters can be misled by cynical, power-hungry demagogues, though that is
certainly true. It is that there is a yawning gap between the intellectual
elite, liberal and conservative, comfortable with a recognition that in the
21st century Americans must become accustomed to living in a
multicultural, multi-sectarian world, and those Americans who, though
prepared to tolerate much, are insistent on retaining an older vision of
Mocking those views as, for example, Cohen, Gerson and Coleman did, or as
the Star Ledger did in headlining its editorial “Oklahoma Goes Rogue
with Nutty Ballot Issue,” only confirms the suspicions of many Americans
that the elite doesn’t understand them, and doesn’t much care for the United
States they yearn for.
sort of dismissal will only backfire.