This week, Oklahoma's "Save Our State Amendment" is on trial in federal court. The constitutional amendment, passed with the support of 70% of Oklahoma voters, is frequently called the Sharia law ban. Earlier this week, Chief Judge of the Western District of Oklahoma Vicki Miles-LeGrange, a Clinton appointee, extended a temporary restraining order on implementation of the amendment while she considers whether to grant a preliminary injunction. We should receive a decision on the preliminary injunction next Monday.
The amendment is not entirely dissimilar from the federal law that made bigamy a crime. In the US Supreme Court's famous Reynolds v. US (1879) case, a law criminalizing bigamy, a heated issue at the time because of the Mormon faith's plural marriage doctrine, was held to be constitutional. Yet, Supreme Court precedent has greatly evolved since 1879 and the Oklahoma amendment will likely have to survive the Court's often criticized Lemon test. Justice Scalia described Lemon, "like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence."
The Lemon test has three prongs.
"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster excessive government entanglement with religion."
The State can survive the first prong of the Lemon test by arguing that the amendment was intended to define Oklahoma's legal system and had nothing to do with promoting another religious faith or singling out Islam. The Oklahoma amendment is reaffirming the Constitution's Article VI Supremacy Clause and the laws that govern the state's legal system, a constitutional use of State sovereignty. Of note, the "Save Our State Amendment" also bans courts from considering international law.
Next, the state will have to overcome the "effect" prong. Here, the Lemon test assesses whether a hypothetical objective observer would see the amendment as advancing certain religions or inhibiting Islam. At its core, the amendment has nothing to do with infringing on a Muslim's right to practice Islam or religious freedom generally. This amendment is about "judicial authority," and is not a "demonization" of Islam.
Finally, the State faces the "entanglement" prong. By instructing courts not to, "consider international law or Sharia law" in a case, Oklahoma is actually preventing the judiciary from being entangled in the analysis of Islamic law. Additionally, the "entanglement" clause is only at issue when the government is interacting directly with a religious institution.
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Please note that in discussing political issues, candidates positions and political party statements, Jordan Sekulow is offering analysis in his individual capacity as lawyer and commentator. He is not speaking on behalf of the American Center for Law & Justice. The ACLJ does not endorse or oppose candidates for public office. Nothing contained in this article should be construed as the position of the ACLJ.