WASHINGTON, Nov. 11, 2010 -- A new chapter in the age-old debate about the role of religion in government is playing out in Oklahoma this month as a federal judge considers the constitutionality of a ballot initiative that forbids state courts from considering Islamic Shariah law in their decisions.
Although sponsors of the measure produced no evidence that Shariah law -- the body of law based on the Koran and the religion of Islam -- is actually being used in the courts, voters approved the measure by a 70 percent margin Nov. 2.
State Senator Rex Conrad, who penned the legislation, told the Los Angeles Times, "Oklahoma does not have that problem yet? ... But why wait until it's in the Courts?"
Opponents of the ban say it is an unconstitutional scare tactic aimed at discriminating against Muslims. They say it will have a broad impact in the areas of family law that come before the courts and could prove to have national implications.
Muneer Awad, Oklahoma executive director of the Council on American-Islamic Relations, filed suit in federal court two days after the election. Awad claimed the measure violates the Establishment Clause of the Constitution, which forbids the government from giving preference to one religion over another.
He says that the sponsors have tried to stigmatize and segregate his faith as something to be feared, while Shariah can play an important role in the areas of marriage and probate law.
"My will asks the judge to consider an aspect of Shariah regarding charitable giving upon death," he said. "This amendment means my will is invalid because it mentions Shariah."
Awad says that religious arbitration -- used by various faiths -- is "nothing new."
"There are Jewish courts dealing with issues of family law and domestic issues that can be resolved in Jewish court," he said. "Those people can ask a judge in a state court to enforce such arbitration. But if judges are forbidden from considering Shariah, then Muslims are unable to present any document of any legal significance that involves aspect of their religion."
Nothing More Than Symbolism?
In an initial hearing, U.S. District Judge Vicki Miles-LaGrange granted Awad's request for a temporary restraining order, blocking the measure from taking effect and setting a hearing for Nov. 22. "The Court finds plaintiff has shown a substantial likelihood of success on the merits of his claim asserting a violation of the Establishment Clause," she wrote.
Still, some experts dismiss the controversy, saying that it represents symbolic politics only, fueled by the after effects of 9/11, and that it is a law that has no impact.
Other scholars believe the issue could be a starting point for a new direction in the debate on religion in the courts. In past decades, the debate might have focused on Catholics, or Jehovah's Witnesses and now it centers on an emerging fear, from some groups, of the role of Islam.
"Worrisome cases are starting to emerge in the United States that show Shariah is coming here," he wrote.
"We should have a federal law that says under no circumstance, in any jurisdiction in the United States, will Shariah be used in any court to apply to any judgment," Gingrich said in a September speech.
A group called Act! For America ran a radio ad in Oklahoma supporting the initiative. "Help us stop Shariah law from coming to Oklahoma," the narrator said, "to protect all Oklahomans -- non-Muslims and Muslims alike -- from the tyranny of Shariah law."
But Rev. Barry Lynn of Americans United for Separation of Church and State says that such sentiments could have unintended, negative consequences; opening the debate about whether courts should reconsider deference to any religious ideals in areas such as family or probate law.
"This opens a huge set of doors raising questions of whether in wills, in medical decision making, or in property distributions, any religious motives can be considered," Lynn said.
"We may see that if judges cannot acknowledge the presence of an Islamic principle in a decision that they can't note Christian, Jewish or other religious either."
Ruling Could Affect Christians, Jews
In his lawsuit's court papers, Awad of the Council on American-Islamic Relations wrote: "The initiative's architects have variously referred to State Question 755 as a preemptive strike, a response to a looming threat, and as a much needed legal reinforcement to the Oklahoma's Judeo-Christian values."
Leslie Griffin, who teaches constitutional law at the University of Houston Law Center, said outlawing Shariah law could lead to sidelining Christian and Jewish "laws" as well.
The use of Orthodox Jewish decision-making bodies known as "Beth Dins" to settle family law disputes is an example, Griffin said.
"Once you question using Shariah law in any circumstances, you must also question using any other religious law as the basis of a legal decision," she said. "When courts allow married couples to resolve their disputes in a religious tribunal, like the Beth Dins, the same principle seems to be at stake."
She said the Oklahoma initiative could have nationwide implications.
"What we've seen from history, is that there is never just one little case about a new religion," she said. "A new religion brings lots of questions to the courts. The issues will be working themselves out across the country."
Of the ballot measure, Lynn of Americans United for Separation of Church and State said, "This is a real expression of overt hostility toward one religion tradition and the personal decisions made by its believers or its practitioners."
There are only a handful of cases in which a judge has referenced Islamic law in a decision.
One 2008 New Jersey case has garnered the most attention from Gingrich and Act! For America. A woman known as S.D. sought a temporary restraining order from her husband, who she claimed had raped her.
A trial judge found that the husband lacked criminal intent for the sexual contact because he was "operating under his [Muslim] belief that it is, as the husband, his desire to have sex when and whether he wanted to was consistent with his practices and it was something that was not prohibited."
An appellate court reversed the ruling, finding the defendant's behavior illegal "regardless of his view that his religion permitted him to act as he did."
"We respect the Constitution, and the law of the land," Awad said. "However, we shouldn't be precluded from engaging in religious practices that don't break the law."