In November 2010, Oklahoma voters approved a ballot initiative to prevent Sharia law from being used in the state, something that even the measure’s defenders could not identify ever happening. (To learn more about what Sharia law actually is, read this brief primer.) Following Oklahoma’s lead, Sharia hysteria soon made its way to other states – including Arizona, Louisiana, and Tennessee – orchestrated by a small group of anti-Muslims misinformation experts we profiled in a report entitled Fear Inc.: The Roots of the Islamophobia Network in America.
Before the Oklahoma law could take effect, however, a federal judge issued an injunction blocking the measure while courts considered its constitutionality. The 10th Circuit, which includes one George W. Bush appointee, a Carter appointee, and an Obama appointee, heard oral arguments in September 2011.
Today, the 10th Circuit unanimously affirmed the lower court’s permanent injunction. In a 37-page decision, the three-judge panel agreed that Oklahoma’s Sharia ban violated the First Amendment’s Establishment Clause and was therefore unconstitutional. On page 32, the 10th Circuit identified the heart of the matter, that Oklahoma’s move had no basis in reality but simply singled out Muslims for discrimination.
Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. Vol. 1 at 67-68.
Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support a compelling interest.15 “To sacrifice First Amendment protections for so speculative a gain is not warranted . . . .” Columbia Broad. Sys., Inc. v. Democratic Nat’l Co., 412 U.S. 94, 127 (1973).
The 10th Circuit is the highest court to date to strike down an anti-Sharia law. It is not yet clear if Oklahoma will appeal the ruling to the Supreme Court.
Today’s decision is a seminal moment in the ongoing battle against Islamophobia. As anti-Muslim individuals continue to push Sharia hysteria in other states, many legislators may think twice before passing a law deemed unconstitutional by the 10th Circuit.
Two such prominent individuals are David Yerushalmi, author of anti-Sharia legislation, and Frank Gaffney, president of the Center for Security Policy and leading anti-Muslim advocate. In a July 2011 New York Times article, Gaffney noted that the two wanted to “engender a national debate about the nature of Shariah and the need to protect our Constitution and country from it.” In an ironic twist, today’s ruling ultimately concluded that it was the Constitution which needed protecting from the Islamophobia network.