Oklahoma Stumbles on Sharia

November 11, 2010

You may have heard that Oklahoma voters approved an amendment to their state constitution that prohibits state courts from considering or applying Sharia—that body of legal norms based on Islamic teaching. However, the other day a federal court issued an injunction preventing the amendment from going into effect . A review of the background for this amendment and the court’s opinion provides further proof that the Religious Right does not understand the significance of the Establishment Clause and the importance of the separation of church and state.

There have been a few misguided attempts in various Western countries to have Sharia accepted as a basis for some legal decisions. Most notoriously, a couple of years ago, the Archbishop of Canterbury argued that the British justice system should accept plural jurisdiction, with Muslims being able to choose whether some legal disputes could be resolved in secular courts or Sharia courts. The archbishop was roundly denounced for this suggestion and the proposal went nowhere. It deserved a quick death. It is a cornerstone of Western jurisprudence that there is one justice system that applies to everyone, and that justice system is secular in nature. It is not designed to be consistent with or to enforce religious dogma. Giving official recognition to Sharia courts would be a pernicious development. In the United States, it also would be an undeniable violation of the Establishment Clause of the First Amendment.

However, Oklahoma is not exactly a hotbed of Muslim activism, nor has there been any push in that state to have Sharia accepted as a parallel legal system. At best, therefore, the proposed constitutional amendment was premature. In addition, the intent of the proposed constitutional was suspect given that its principal proponent argued that the amendment was needed to ensure that Oklahoma courts were not used to undermine the “Judeo-Christian principles” on which the nation was founded. This indicated the proposed amendment had a sectarian motive. Finally, the measure was overbroad. The proposed amendment did not limit itself to forbidding courts from using Sharia as the basis for decision, but instead prohibited courts from even “considering” Sharia.

Courts can consider a lot of things when arriving at a decision, including, occasionally, literature and history, and sometimes they have reason to consider religious practices, not because religious doctrine provides the justification for the decision, but because a particular religious practice may provide the factual background necessary for an appropriate decision.

The plaintiff in the Oklahoma case argued precisely that point, alleging that his will contained various references to Sharia and that a probate court would need to consider Sharia to ensure the will was interpreted properly. The federal court agreed. Furthermore, the court found that the proposed amendment did not have a legitimate secular purpose, as it appeared designed to give a government endorsement to Judeo-Christian views over Muslim views.

The proposed amendment has proven to be pointless and counter-productive. There was no effort in Oklahoma to have Sharia accepted as the basis for decisional law—and as long as the Establishment Clause is enforced, such an effort would have come to naught anyway. Moreover, now the Muslim community can argue it has been singled out for discrimination, which is a claim not entirely without factual support.

This fiasco has resulted from the Religious Right’s fundamentally flawed belief that the U.S. is a Christian (or Judeo-Christian) nation, and that the purpose of the Establishment Clause is effectively limited to preventing the federal government from favoring one Christian sect over another. Their own warped view of the Establishment Clause prevents them from understanding that, properly interpreted, it is sufficient to prevent the nation’s courts from using the doctrine of any religion as the basis for a decision. There is no need for additional constitutional provisions at the state level. But, of course, the Religious Right does not want a government that is neutral in religious matters—they simply don’t want Islam to have the same status as Christianity.

The only reliable guarantor of religious freedom for all is a secular state that leaves religious matters entirely in the hands of individual believers and nonbelievers. And if we only respected the intent of the Establishment Clause, we would have that secular state already.