November 10, 2010

Anti Sharia Amendment Enjoined

A Federal court in Oklahoma has enjoined certification of the passage of Measure 755, about which I and several others wrote a while back. If you haven't been keeping up with past episodes, Measure 755 would forbid an Oklahoma court from "considering or using" either Sharia law or international law, including treaties.

The District Court's opinion can be read here.  Judge Vicki Miles-LaGrange first finds a likelihood that the plaintiff has standing, and then finds a likelihood that Measure 755 fails all three prongs of the Lemon test. Bear in mind that this is a preliminary and prudential finding; the matter will be more fully briefed at a hearing set for November 22 when the State of Oklahoma will have an opportunity to brief and defend Measure 755 on its merits after some time to prepare more thorough arguments and briefs. Hopefully, this briefing will include declarations from the legislators who authored and sponsored the ballot initiative, but we'll see what it finally looks like.

I have also seen a lot of grousing that the challenge to Measure 755 was brought by a distasteful and weird group called the Council on Islamic-American Relations. For the record, CAIR is not an object of my praise or any sort of moral defense; I've no particular love for them. To the extent that CAIR's members are American citizens or people lawfully within the United States, they have the same rights I do to advocate whatever changes to the law they think are desirable and they need offer no further justification than their desire to speak. No one else is under any obligation to listen to them or to agree with them, and CAIR is so marginal and impotent an advocacy group that it may be effectively disregarded as a political force of any import whatsoever.

But CAIR is also not the named plaintiff in this lawsuit; the plaintiff is an individual American citizen named Muneer Awad, who is a Muslim living in Oklahoma. He does not like that the state is officially demeaning his religion and fears injury in that his will makes reference to Sharia requirements that a portion of his estate be distributed to charity, and therefore that Measure 755 would prevent an Oklahoma probate court from following those instructions. Whether Mr. Awad is a member of CAIR, or if CAIR is bankrolling the legal challenge, or if CAIR is just another one of the shouters from the sidelines, is unclear -- but also irrelevant. A legal argument is valid, or not, regardless of who makes it.

The standing issue is more interesting than the Establishment Clause issue. Because I think the Lemon test has been superseded by and subsumed into the endorsement test ("The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion," Lynch v. Donnelly (1984) 465 U.S. 668, O'Connor, J., concurring) the issue of whether Measure 755 violates the Establishment Clause is a slam dunk. It could not be more clear that Measure 755 singles out a single religion for especial disapproval.

The more interesting question is who gets to make that argument, and when, and how the Court can respond to it.

I think Mr. Awad likely has standing. A will is of no tangible benefit to the testator, whether the will is entirely secular or makes reference to religion in some way. But the will is of an intangible, emotional benefit to the testator, who acquires with the will the knowledge and assurance that his family, loved ones, and other people he cares about will be provided for after his death as he would want them to be. Like an insurance policy, what one buys with a will is peace of mind. Losing that peace of mind seems to me to be a tangible enough injury to convey Article III standing. So the disputant has standing, the dispute is ripe, and there is a substantial federal issue in the violation of the Establishment Clause.

But then I get to this issue. Mr. Awad's will makes reference to Sharia. So under Measure 755, an Oklahoma probate court would have to disregard those sections of the will referring to Sharia. But couldn't the will -- and thus the probate court -- order disposition of the estate to charity anyway? He doesn't have to write in a reason into the will at all, and it would be a simple thing for the court to say, "For whatever reason, the testator wanted 10% of his estate to go to charity, so 10% goes to charity." To the extent that he enumerates his reasons for wanting his estate disposed of this way, the Court could treat that text as a superfluity and simply ignore it.

Then there's the question of the way the Court approached the remedy. In the TRO ruling (again, which is only in effect for about two weeks) the Court enjoined the state from certifying the election return. I'm not at all sure this is the right remedy. Either the voters passed Measure 755 in accordance with Oklahoma state law, or they did not. That's the only thing the certification tells us. Whether Measure 755 is Constitutionally valid or not is a different question.

There is clearly no problem with the Court enjoining enforcement or enactment of Measure 755. It could remain on the books as a dead letter.

Personally, I see no problem with the Court striking Measure 755 from the Oklahoma constitution, because the Supremacy Clause provides that no state law may contradict the U.S. Constitution -- and Measure 755 violates the Establishment Clause of the First Amendment by virtue of its dis-endorsement of Islam. But it has to get in the Oklahoma constitution in the first place before it can be stricken. And the presence of even a dead letter on the books creates at least an insult to those who would have been condemned by the law. It was widely believed in Tennessee that the provision of the state's law forbidding atheists from serving in public office or on juries was unconstitutional and unenforceable -- but I still felt insulted by the state when I lived there; the presence of that law was an official reminder from the state that I was not quite a first-class citizen, even if there would be no tangible effect of that classification. So striking the law from the state's constitution seems appropriate to me.

I'm not entirely comfortable with the way this is going down. Procedure is as important just like substance, so while I've no quibble with the finding that there is an Establishment Clause violation, I wonder if the remedy here is correct. Because the nature of the injury here has not been shown to be concrete, and because the remedy is one which does not seem tailored to address the remedy, this comes close to being an advisory opinion.

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