At a loss for words

Not surprisingly, a “federal judge Thursday prohibited Oklahoma officials from certifying the results of a 2010 statewide election that approved a constitutional amendment to prohibit state courts from considering international or Islamic law when deciding cases.”  See also How Appealing (posted at 08:24 AM, August 16, 2013).

As I thought about the poor federal trial judge who was assigned to this case, I struggled for words to describe my feelings.  Then I saw the following which perfectly captures my sentiments:

Photo credit: TRF_Mr_Hyde per Creative Commons license.

Image credit: TRF_Mr_Hyde per Creative Commons license.

RGK

15 responses

  1. I trust you’re referring to the 10th Circuit judges who thought Awad’s suit should be taken seriously, and to Judge Miles-LaGrange, whose ruling overrules the voice of the people of Oklahoma (and who represent, naively, 1/50th of her employers); violated the 10th Amendment; and violated the Establishment Clause she pretends to be upholding.

    …it is abundantly clear that the primary purpose of the amendment was to specifically target and outlaw Sharia law and to act as a preemptive strike against Sharia law to protect Oklahoma from a perceived “threat” of Sharia law being utilized in Oklahoma courts.

    Yew betcha. The only laws it’s legitimate for an American court to consider are the body of statutes passed by American legislatures. Period. In allowing Sharia to be entered into American (Oklahoman, here) courts, she’s fostering the government establishment of religion by giving weight to a particular religion’s tenets in secular courts.

    It’s not a problem, yet? That’s not even relevant. The people have a right to prevent it from becoming a problem. Governments may not engage in prior restraint; the members of our social compact certainly can. Or our Federal and State Constitutions themselves (with the Federal one decried by some on the left as not binding, and by some Justices as living and so malleable by Justices) are…unconstitutional…since every one of them engages in deliberate prior restraint–of our governments. And it already is a problem in other states; see, for instance, a Superior Court of New Jersey case, Docket No. FV-09-1792-09 (it might be visible only via New Jersey appellate court case S.D. v. M.J.R. (NJ Superior Court Appellate Division), Docket No. A-6107-08T26107-08T2; the state is trying to protect the lady’s privacy).

    Adverse to the public interest? Also not relevant here. It’s not the government’s role to presume to protect us from ourselves. More importantly, when the people have spoken (by a 7:3 ratio, yet), that is their interest.

    On the matter of “not a problem,” Awad’s suit was baseless: the state constitutional amendment in no way abridged his ability, much less his right, to practice his religion. It just would have prevented him from uing his religion to commit felonies, which the New Jersey judge did allow.

    This was a slam dunk case, and Miles-LaGrange missed. But then, so did the Supremes on California’s Prop 8.

    Eric Hines

  2. Mr. Hines’s ignorance of the First Amendment is shocking but no surprise. The card is plainly meant for him. This constitutional amendment is a blatant attempt to create an official disfavor of Islam, to stigmatize the plaintiff’s religion, and to deny him equal protection to boot. Despite its language, the amendment has absolutely nothing to do with telling courts what they can and cannot consider. And constitutional rights are supreme here, no matter how many bigots in Oklahoma voted for this ugly, moronic and racist law.

  3. At our office, we refer to certain kinds of cases as ‘the stupid rule.’

    They include many pro se petitions (and the occasional lawyer brief) that argue for such glorious things as “I have a property interest in a legal judgment” or “The judge should have entered a directed verdict for me because I should have won the litigation.” My personal favorite was the one that said the state had to prove that this defendant intended to speed 15 miles over the speed limit. The infuriating thing about these cases is that there’s no precedent against these types of challenges, since everyone has passed criminal law their first year of law school and knows better.

    This sounds like precisely that type of case. No one has been stupid enough to try something like this because it is clearly a violation of the 1st Amendment, yet it is not clearly articulated anywhere.

    Perhaps you could suggest codifying a new rule of the court, allowing citation to the Stupid Rule?

  4. Here are the Establishment and Free Exercise Clauses of the Federal Constitution:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….

    Additionally, from Article VI of that Constitution:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    There’s nothing in here about religious law having any place at all: only the laws made by the people through their elected representatives, or the international treaties agreed by their elected representatives, may be considered in courts.

    This is Oklahoma’s SQ755 ballot:

    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 teaching of Mohammed.
    Shall the proposal be approved?

    This is the text of the actual Oklahoma Constitutional Amendment (from Judge Vicki Miles-LaGrange’s ruling):

    The Courts…when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

    The center of Judge Miles-LaGrange’s ruling is a rubber stamp of the 10th Circuit’s ruling upholding her preliminary injunction, which itself centered on discrimination by religion as a basis for finding an Establishment violation and potential vs present harm. I’ve already addressed the latter in my earlier comment. There is in this state amendment, though, no discrimination: it simply sought to ban Sharia law from consideration in state courts, just like Hassidic Law is not allowed to be considered, Buddhist tenets are not allowed to be considered, Hindu tenets are not, etc, etc, etc. There being no ongoing effort by the courts of other states to incorporate the tenets of other religions into their decision-making, there was no need to enumerate any other religions in the present amendment.

    On the contrary, by barring the people of Oklahoma from amending their own constitution, from changing the terms of their own social compact, in this way, Judge Miles-LaGrange has herself violated Establishment by functionally requiring the Oklahoma government to consider the rules of a particular religion. The opposite of “you may not” is not silence, or an option, but “you must.”

    Finally, there’s nothing in the voice of the people of Oklahoma, as articulated in their ballot or their amendment, that supports a thesis of bigotry or racism (a misnomer, since religious bigotry has naught to do with race, but that’s a distraction), only an instruction to Oklahoma courts that they may not consider Sharia law in adjudicating the controversies before them; they are limited to the laws passed by their (or other states’) elected representatives.

    Eric Hines

  5. Mr. Hines,
    You are far more educated on the subject than I am, and I appreciate you taking the time to respond to my point. As my name suggests, I’m still a law student, and do not pretend to great wisdom on this subject. But perhaps, if you view the decision through a different lens you can see that this case ended correctly.

    This case is a prima facie violation of a party’s equal protection. Mr. Awad made a will which included elements of Sharia law in it. Because a court in Oklahoma could not use Sharia law, those portions of the will must be invalidated by this amendment. Accordingly, Mr. Awad has suffered a real injury through a law that discriminates against his religion.

    Since it is a prima facie violation, the Larson test the Court articulates applies. Under that standard, the government must show a compelling state interest, and that the amendment must be closely fitted to that interest.

    The only compelling interest Oklahoma ever asserted was that they had the “right to determine what law is applied in their courts.”

    If this reason were sufficient, it would lead to an absurd result, because the legislature could choose whether or not to accept things such as Supreme Court opinions, the Geneva conventions. Not to mention they are bound to accept the decisions of other state’s courts and federal courts as well.

    Now I understand that Oklahoma should have the right to determine what the law is in the state. It is probably a rational basis for such a law, but I don’t think that ‘we want to control the law in our courts’ is a good reason to infringe upon religious freedom, particularly when it is applied so broadly that it affects Mr. Awad’s will, or other contracts between Muslims using Sharia law. Shouldn’t those be enforceable within the State of Oklahoma? I see little reason why they should not be besides discrimination.

    First amendment challenges require that the law survive strict scrutiny. This amendment cannot survive strict scrutiny, because the purpose is insufficient.

  6. SLS,

    I’m hardly educated on the matter; as I’ve pointed out in other threads, I’m a layman. As such, my arguments are on principle, not the detail of law. It may be that the judge ruled correctly, strictly on the basis of law; she still ruled wrongly.

    Before I get to others of your points, let me suggest one thing, first: [I]f you view the decision through a different lens you can see that this case ended correctly. I suggest that if the matter has to be viewed through a particular lens in order to see the correctness (or lack) of the outcome, it may be that the outcome isn’t as cut and dried as you and others–or I–think it to be. Or I’m misunderstanding your metaphor.

    Mr. Awad made a will which included elements of Sharia law in it.

    I saw no reference to a will in Miles-LaGrange’s ruling; perhaps reference might have been made in some of the other case filings. One of two things flow from that: there is no reference to such a will anywhere in the case (without calling you on this), in which case the harm supposedly done Awad is speculative–the very sin M-G assigns to the amendment. Or the will was made. But Awad could have achieved exactly his desired outcome by enumerating what he wanted, rather than taking a short cut of saying, say, “IAW Sharia.” Ruling in his favor on the basis of this “harm” is for the court to impose Awad’s religious tenet on the rest of the state–a violation of Establishment and of the rest of the OK citizens’ Free Exercise rights.

    The only compelling interest Oklahoma ever asserted was that they had the “right to determine what law is applied in their courts.” … lead to an absurd result, because the legislature could choose whether or not to accept things such as Supreme Court opinions, the Geneva conventions. Not to mention they are bound to accept the decisions of other state’s courts and federal courts as well.

    If the assertion were made by the state legislature, I’d agree with you 100%. It was not, though; it was made by the citizens of the state regarding how they wanted the terms of their state social compact to read. And that compact amendment both was limited to their state’s courts and it explicitly recognized the (people-enacted through elected representatives) laws of other states and Federal law. All this vox populi statement contained was an injunction that their courts could not consider Sharia Law.

    Moreover, their bald statement “because we want it so,” when speaking in their capacity as the citizens of their state amending their constitution, is all the courts need to hear. The employer does not need to justify his requirement to his employee. That employer/employee relationship is a bit attenuated when it’s the state’s people addressing a Federal court, but the principle is sound. Especially in a matter where the 10th Amendment is involved. As a legal matter, the state didn’t make that State’s Rights argument, certainly, but I fault the lawyers on that, not the law.

    Should contract under Sharia be valid in OK? Maybe. The contract requirements can be laid out secularly, just fine. If OK must honor this part of Sharia, must they not honor all of Sharia, and not pick and choose the convenient parts? But if Sharia must be honored in its entirety, then OK must accept spousal rape, because Sharia countenances that–as that NJ judge ruled.

    I think OK was justified in trying to cut that Gordian knot with their amendment. Maybe the amendment would have been better written to mandate only legislative law to be considered in OK courts, but they didn’t. It’s their constitution; they shouldn’t have to.

    The outcome, though, is that the people of a state spoke loudly and firmly, and a Federal judge said they have no voice.

    Eric Hines

  7. Southern Law Student and Eric also:

    I agree that your debate has been a good one. Thanks to each of you for the engagement.

    Setting aside all the legal stuff, I pity the poor federal judge in this case because Oklahoma’s ban and the resulting dispute are so unnecessary. Sure, you can gin up all sorts of horror stories about applying Islamic Sharia law in America, but you can do the same thing about applying Catholic Canon law in America. I have lived for a long time and I have yet to see a case where Roman Catholic Canon law threatened the people of this country. I fear that the real reason for explicitly banning Sharia law (but not Catholic Canon law, for example) is that good folks in Oklahoma wanted to preemptively poke some unknown bad guys in the eye. In so doing, the people of Oklahoma created a problem when there was none. Unfortunately, the longer I do this job, the more of that I see.

    All the best.

    RGK

    PS. My reference to Catholic Canon law was an example. I could have used Jewish law or the laws of various other religions.

  8. Despite the angels-on-the head-of-a-pin discussion above, I still see no basis for concluding anything other than that this ridiculous enactment was solely motivated by, and purports to enact into law, anti-Islamic bigotry. Not one person in a thousand who voted for this could tell you what Sharia law says about anything whatsoever.

  9. Richard,

    I really don’t think it is bigotry as much as fear. That’s not an excuse but an explanation. For a country built on immigrants, our history is replete with examples of natavism run wild. The movie Gangs of New York provides a cinematic example.

    All the best.

    RGK

  10. Judge, I agree with you that it’s fear rather than bigotry. And of course one of the ugliest parts of our history is nativism run wild. But for those who have been on the receiving end of it in the last 200 years,isn’t that a distinction without a difference? America seems to have an unhealthy and dangerous need for an other, throughout its history. Native Americans, African Americans, both before and after the 13th Amendment, communists, lefties, labor leaders, hippies, and of course, most recently, terrorists, a truly meaningless term. Ultimately, no person, and no nation, can live indefinitely in a state of fear….and I think that our endless need for an “other” will be our undoing.

    BTW Gangs was a great movie….
    And you are a man of true compassion, a rare thing in a federal judge. I wish there were more of that in the SDNY, where I spend so much of my life.

    All the best to you.

    Richard

  11. Richard,

    Absolutely a distinction without a difference unless people who are fearful are more susceptible to education than people who are bigoted. In that vein, I wonder what would have happened if someone like the Governor of Oklahoma would have stood up and rationally explained why the idea was such a bad one. Now, this would have required courage. A truly conservative governor would not cave to the fringe.

    I can think of a speech the Governor of Oklahoma could make. It might start with a a history lesson.

    “Years ago Nebraskans made an error that we are going to repeat with this Sharia law thing if we aren’t careful. World War I witnessed an extensive campaign against all things German, such as the performance of German music at symphony concerts and the meetings of German-American civic associations. We also saw a ban on teaching the German language. This hysteria resulted in the famous case of Meyer v. Nebraska in the Supreme Court where Nebraska effectively banned the German language because, as the lawyer for Nebraska argued, “it is the ambition of the State to have its entire population 100 per cent American.” Nebraska lost that case. The Supreme Court reminded us that we cannot target our fellow citizens by prohibiting them from embracing their our cultures unless a particular cultural aspect presents a real and obvious danger to the rest of us.

    We Oklahomans are smarter than Nebraskans. But, if we aren’t careful with this Sharia law deal, we will become a laughing stock just like Nebraska and we will end up paying the damn lawyers a lot of money. Let’s not make the same mistake as those dolts who call themselves Cornhuskers.”

    All the best.

    RGK

  12. I admire and often share your idealism, but sad to say, history is not on the side of tolerance. Would that it were otherwise. And this morning the TV reminded me of FDR’s internment of the Japanese during WWII, another dark chapter of our seeming need to demonize the other.

    Anyway, have a good time in London….and yes, they have the internet there too, so you will be able to continue to share your thoughts with your readers.

  13. Richard,

    I am really not much of an idealist. But, I do think there is (or at least used to be) a sort of inevitable hydraulic pressure in America that forces immigrants to assimilate and nativists to accept (albeit grudgingly) the assimilation. At least I hope that is so. If I have hope for the future, it is largely because of this: Very soon, the demographics of America will be fundamentally changed when old white folks like me are no longer the majority. When that happens, I trust that the xenophobia we have so often seen in the recent past will recede. We judges have a delicate job to perform in that regard. That judicial job requires a balance between firmness and restraint. That is, requiring that certain elemental principles are followed, but otherwise staying out of the petty and annoying but inevitable disagreements that will rear their heads while not actually threatening elemental principles. Delicate work,but worth the doing.

    All the best.

    RGK

%d bloggers like this: