On November 2, Oklahomans amended their constitution to prohibit their state courts from “look[ing] to the precepts of other nations or cultures” when adjudicating a case.  The amendment specifically prohibits consideration of “international law or Sharia Law.”  State Question 755, as the amendment is known, garnered the support of 70 percent of the citizenry.

A few weeks later, U.S. District Judge Vicki Miles-LaGrange, claiming that the people violated the Establishment Clause of the First Amendment, enjoined the State Board of Elections from certifying the results for State Question 755 (Awad v. Ziriax).  This injunction is the first step in an effort to overturn the people’s choice of law for their state courts.

State Question 755 was prompted, in part, by American courts’ increasing reliance on foreign law and the appearance of sharia (Islamic law) in parts of the United States.  The use of foreign law is best evidenced by recent Supreme Court decisions.  For example, in Atkins v. Virginia (2002), the Supreme Court held that the execution of mildly retarded murders amounts to cruel and unusual punishment under the Eighth Amendment.  In reaching this conclusion, the Court cited a consensus in the “world community” against capital punishment.  When striking down a Texas statute prohibiting homosexual sodomy in Lawrence v. Texas (2003), the Court cited decisions from the European Court of Human Rights protecting homosexual activity.

With the influx of immigrants from Muslim lands, sharia is creeping into the jurisprudence of some states.  The most recent instance is S.D. v. M.J.R. (2010), a New Jersey case in which a state trial judge excused a Moroccan man’s rape and torture of his wife because of a lack of criminal intent.  At the trial, a local imam testified that a wife must comply with her husband’s sexual demands under Islamic law.

After hearing this testimony, the trial judge ruled that because the husband believed that his conduct was consistent with Muslim religious custom, the defendant could not form the criminal intent required to be guilty of criminal sexual conduct in New Jersey.  The trial judge also vacated a temporary restraining order issued against the husband.

Fortunately, a New Jersey appellate panel reversed the trial court.  The appellate court recognized that Muslim religious precepts cannot override generally applicable state criminal prohibitions.

In enjoining State Question 755, Judge Miles-LaGrange worked diligently to reach the First Amendment issue.  Before issuing the injunction, she first had to determine whether Muneer Awad had standing to bring suit.  A party has standing only if he has suffered a concrete injury.  Courts typically hold that an abstract or stigmatic injury does not get a plaintiff over the standing hurdle.

According to a plaintiff’s memorandum entered into the record in Awad v. Ziriax, Muneer Awad claimed injury because, upon certification of the amendment, he “is certain that having the knowledge that Oklahoma condemns his faith will cause offense and injury.  He anticipates that such official disapproval of his faith will result in a stigma attaching to his person.”  Such an injury is about as abstract as they come and should not support constitutional standing.

Judge Miles-LaGrange also found standing since Awad’s will requires application of sharia for the probate of his estate.  This conclusion is irregular.  Awad is alive, and his will has not been submitted to probate court.  Until both those situations change, neither Awad nor his estate can show standing.  There is no concrete injury.

Going beyond the standing issue, the judge reached out to find that Awad has a likelihood of success on the merits of the claim.  She ruled that the amendment unconstitutionally inhibits the Muslim religion and will excessively entangle the state courts with religion.  “[T]he court finds that plaintiff has shown that to comply with the amendment, Oklahoma courts will be faced with determining the content of Sha­ria Law, and, thus, the content of plaintiff’s religious doctrines.”

In reality, refusing to apply sha­ri­a causes no entanglement, but the application of it does.  We need only look to the New Jersey court’s taking of testimony from an imam about a wife’s duty to her husband to see what true entanglement looks like.

Contrary to Awad’s and Judge Miles-LaGrange’s opinions, the amendment does not target “religion” but deals with the exercise of state judicial power.  It prohibits state courts from relying on opinions from the European Court of Human Rights as well as the sharia courts of Morocco.  Awad is free to practice his faith so long as he adheres to Oklahoma’s generally applicable rules of conduct.

Awad v. Ziriax is the latest work of unelected judges to quash the will of the sovereign people.  Oklahomans want their courts to apply American constitutional law, statutory law, and common law when hearing cases.  Rather than permit this reasonable request, the federal courts labor to give sha­ria a foothold in the United States.  Judicial supremacy combined with multiculturalism writes another chapter in the suicide of American civilization.