2010 Oklahoma State Question 755

Last updated

State Question 755
Save Our State Amendment
Results
Choice
Votes %
Check-71-128-204-brightblue.svgYes695,65070.08%
Light brown x.svgNo296,94429.92%
Total votes992,594100.00%
2010 Oklahoma State Question 755 results map by county.svg
Yes
  80–90%
  70–80%
  60–70%

State Question 755, also known as the Save Our State Amendment, was a legislatively-referred ballot measure held on November 2, 2010, alongside the 2010 Oklahoma elections. The ballot measure, which passed with over 70% of the vote, added bans on Sharia law and international law to the Oklahoma state constitution. However, the amended language never went into effect; a challenge in federal court successfully argued that it violated the First Amendment to the United States Constitution.

Contents

Background

Following the September 11 attacks, anti-Muslim sentiment became more common in the United States. Sharia law, derived from Islam, came under increasing scrutiny, especially as Sharia law as practiced in many countries authorizes severe punishments for acts such as adultery and the consumption of alcohol. However, Sharia law can exist as a source of inspiration for individual Muslims, in line with the Quran, and that application of Sharia principles does not necessarily entail a radical legal system. [1] : 696–697 

A few cases in the 2000s in the United States where Sharia law played some role were also cited by opponents of Sharia law. [1] : 698  Most famously, [1] : 698  in 2010, a woman in New Jersey was denied a restraining order against her husband after she alleged that he raped her; her husband argued that he was acting in accordance with his religious beliefs in forcing her to have sex. [2] [3] This ruling was issued even though there was sufficient evidence present to prove sexual assault. [1] : 698  The ruling was quickly overturned, [1] : 698  but it gained significant national attention, and inspired Oklahoma lawmakers to pursue a ban on the use of Sharia law in their state. [3] After the amendment passed, Oklahoma's solicitor general, Patrick R. Wyrick, cited this case as part of his attempt to defend the amendment in court. [2]

The amendment was introduced as House Joint Resolution 1056. State Representative Rex Duncan was the primary author of the amendment, with Mike Reynolds, Ann Coody, Sue Tibbs, David Derby, Sally Kern, Randy Terrill, John Enns, Mike Christian, George Faught, Lewis H. Moore, and Charles Key as coauthors in the House, and with Anthony Sykes and Randy Brogdon as coauthors in the Oklahoma Senate. [4] Duncan argued the ban would be a "pre-emptive strike against Sharia law" as Oklahoma would be the first state to enact such a ban. [5] Sykes also brought up comments Elena Kagan made during her Supreme Court nomination where she expressed an openness to considering international law while hearing cases. [3]

Contents

The state legislature named the proposal the "Save Our State Amendment" and sent it to the state's ballots with the following ballot title: [4]

This measure amends the State Constitution. It would change a section that deals with the courts of this state. It would make courts rely on federal and state laws when deciding cases. It would forbid courts from looking at international law or Sharia Law when deciding cases.

However, as this title did not explain what Sharia law or international law were, Oklahoma attorney general Drew Edmondson deemed it inadequate and replaced it with a more explanatory ballot title. [5] [4] The proposal was therefore listed on ballots as follows: [4]

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law. International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

The amendment was numbered and listed on ballots as State Question 755 and as Legislative Referendum 355. [4]

Support and opposition

The amendment was supported by most legislators, with only ten in the House and two in the Senate voting against the measure. [6] All opponents in the House were Democrats, though 24 Democrats in the House supported the measure. [a] [7] ACT for America, a conservative advocacy group led by activist Brigitte Gabriel, strongly supported the measure, with Gabriel visiting the state to make multiple speeches in favor of the amendment. [8] The Tulsa Beacon , a conservative newspaper, endorsed the measure. [9]

Democratic state representative Cory Williams, one of the opponents of the measure, argued that it was unnecessary and singled out Muslims. Chris White, the executive director of governmental affairs of the Osage Nation, expressed concerns that the measure could undermine treaty rights established in U.S.–Native American treaties. [10] Several religious groups also opposed the measure, with Saad Mohammed, the director of information for the Islamic Society of Greater Oklahoma City, arguing that the measure was unnecessary and only targeted Muslims without a good reason. [6]

Many newspapers in the state opposed the measure. The Oklahoman opposed the amendment, describing it as an unnecessary "feel-good measure". [11] The Enid News & Eagle similarly opposed it, noting that state and federal law is already the only law used in Oklahoma. [12] Tulsa World described the measure as bigoted, [13] and The Oklahoma Daily described it as Islamophobic. [14]

Polling

Poll sourceDate(s)
administered		Sample
size [i] 		Margin
of error		Support
Question 755		Oppose
Question 755		Don't know/refused [ii] Lead
SoonerPoll [15] October 18–23, 2010753 (LV)± 3.57%57%24%19%33pp
SoonerPoll [16] October 3–7, 2010352 (LV)± 5.2%45%25%30%20pp
SoonerPoll [17] July 16–21, 2010755 (LV)± 3.57%49%24%27%25pp
  1. ↑ Key:
    A – all adults
    RV – registered voters
    LV – likely voters
    V – unclear
  2. ↑ Some polling results do not add up to 100% due to rounding.

Results

The amendment was approved by 70% of voters. Support was high across the state, with more than 60% of voters supporting it in every county. [18]

Question 755 [18]
ChoiceVotes %
Check-71-128-204-brightblue.svg Yes695,65070.08
No296,94429.92
Total votes992,594100.00

Aftermath

Despite passing by a wide margin, the amendment never took effect due to legal challenges, and future efforts to pass a similar amendment failed.

Court proceedings

After its passage, the amendment was scheduled to go into effect on November 9, when the election would be certified. [1] : 703  However, on November 4, [1] : 703  Muneer Awad, a local leader of the Council on American–Islamic Relations, [3] sued the Oklahoma Board of Elections to stop the amendment from being enacted. He said that he wanted his estate to be dealt with under Islamic law, and that a ban on Islamic law would therefore violate his rights under the Establishment Clause [1] : 703  of the First Amendment to the United States Constitution. [19] The case, Awad v. Ziriax, was filed against the Oklahoma State Election Board, which was responsible for certifying the results of the amendment. [3] Awad was supported in his lawsuit by the American Civil Liberties Union. [2]

A temporary restraining order was issued on November 9, preventing the amendment from going into effect while the court ruled on Awad's request for a preliminary injunction. [1] : 703  That preliminary injunction was issued by Vicki Miles-LaGrange, a judge for the United States District Court for the Western District of Oklahoma, on November 29, 2010. [20] The injunction was appealed to the United States Court of Appeals for the Tenth Circuit, where it was upheld on January 10, 2012. [3] The amendment was struck down in its entirety by Miles-LaGrange on August 15, 2013, with her finding that the law clearly violated the First Amendment. Oklahoma officials argued that only the Sharia prohibition in the law could be struck down, while leaving the rest intact, but Miles-LaGrange found that as most campaigning regarding the amendment focused on Sharia law, there was insufficient evidence that it would have been approved by voters without the Sharia prohibitions. [21]

For a preliminary injunction to be issued, the district court determined that three things would be necessary: Awad would need to have a "substantial likelihood of success" in challening the amendment on constitutional grounds, he would need to be likely to suffer "irreparable injury" without an injunction, his injury would need to outweigh the injury that an injunction would impose on the state of Oklahoma, and the injunction could not be against the public interest. [1] : 718  Given that Awad's request for a preliminary injunction would permanently prevent the enactment of the amendment, it was considered "disfavored" and held to a higher standard: he needed to show a "heightened burden" and a higher likelihood of success in challenging the amendment on its constitutional merits compared to what would typically be necessary. [1] : 718–719  The district court then evaluated the Establishment Clause claims with the Lemon test. [b] The court found that the amendment likely violated both the "effect" and "entanglement" prongs of the Lemon test. [1] : 719  The court also determined that the amendment likely violated the Free Exercise Clause, as it was not "narrowly-tailored" to a particular governmental interest and it was not facially neutral as it singled-out a particular religion for discrimination. [1] : 719  The court also determined, without going into much detail, that Awad had demonstrated "irreparable injury", that the harm done to him by the violation of his constitutional rights was inherently more important than enacting the amendment, and that upholding Awad's constitutional rights was inherently in the public interest. Given these determinations, the court ruled in favor of Awad, enjoining the amendment from taking effect. [1] : 720 

Though the Tenth Circuit upheld the district court's ruling in the case, their legal reasoning was quite different. [1] : 718  The court agreed that the injunction should be considered "disfavored" and held to a higher standard. It also agreed that Awad had demonstrated that he would suffer irreparable injury, that this outweighted Oklahoma's potential injury, and that the injunction was not in conflict with the public interest. [1] : 720  However, their ruling regarding whether Awad had a high chance of winning the case on its constitutional merits was different. It generally ignored the Free Exercise claim, as they determined its analysis to be unnecessary as the law was in violation of the Establishment Clause. In that Establishment Clause analysis, the court rejected the use of the Lemon test and instead invoked a test from Larson v. Valente , a case cited much less frequently. This was because the court determined that Lemon applied only to laws that would benefit all religions, not to laws that would discriminate between different religions. Because the amendment focused on Sharia law, it could, per the test in Larson, only be constitutional if it was "closely fitted" to address a compelling governmental interest. Given that the Board of Elections had failed to demonstrate any cases where Sharia law was actually used, the court determined that there clearly was no compelling governmental interest at play, and even if such cases did exist, a full ban on Sharia law would likely not be a "closely fitted" remedy. [1] : 721 

In the Denver University Law Review , Renee Sheeder described the amendment as "blatantly unconstitutional" as well as harmful to Oklahomans. [22] : 812  Particularly, state law cannot ban international law, as the federal government is authorized to enter into treaties that bind states. [22] : 812  The amendment's strict bans on Sharia and international law would also prevent Oklahoma courts from considering decisions or referencing judgements courts in other states had made if those decisions had at all been influenced by Sharia or international law, potentially causing problems for dealing with cross-state disputes. [22] : 813  She attributed the amendment's large margin of victory to a fear of Islam that was promoted by Republican politicians in the state, [22] : 816  and praised the court for upholding the rights of religious minorities. [22] : 823 

Continued legislative efforts

Following initial legal challenges to the amendment, Sally Kern, a Republican member of the Oklahoma House, introduced HB 1552 in 2011. The bill intended to work around legal challenges by banning all religious and foreign law from being used in the state. The Oklahoma Council on American–Islamic Relations lobbied against this bill, arguing that it infringes on religious freedom and also threatens the validity of international business contracts. [23] The measure passed by a 76–3 margin in the House, but was ignored in the Senate. [24] She reintroduced the bill in 2012, where it again passed the House, but was rejected 6–9 in the Senate's rules committee. [25]

Notes

  1. ↑ The ten opponents were Wallace Collins, Ryan Kiesel, Al McAffrey, Anastasia Pittman, Wade Rousselot, Seneca Scott, Mike Shelton, Ben Sherrer, Jabar Shumate, and Cory T. Williams. [7]
  2. ↑ The Lemon test has three prongs: requiring that the legislation has a secular purpose, requiring that its primary purpose or effect not be to advance or inhibit religion, and requiring that the legislation must not result in "excessive government entanglement" with religion. Only legislation that is in accordance with all three prongs is constitutionally valid. [1] : 713 

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References

  1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Grunert, Jeremy (2012–2013). "How do you solve a problem like Sharia? Awad v. Ziriax and the question of Sharia Law in America". Pepperdine Law Review . 40: 695–734.
  2. 1 2 3 Banda, P. Solomon (September 12, 2011). "Denver Appellate Court To Hear Islamic Law Case – CBS Colorado". CBS News . Associated Press . Retrieved April 23, 2024.
  3. 1 2 3 4 5 6 Mears, Bill (January 10, 2012). "Federal court blocks Oklahoma ban on Sharia". CNN . Retrieved April 23, 2024.
  4. 1 2 3 4 5 "State Question Number 755 – Legislative Referendum Number 335" (PDF). Oklahoma Secretary of State .
  5. 1 2 Schlachtenhaufen, Mark (June 4, 2010). "Sharia law, courts likely on 2010 ballot". Norman Transcript . Retrieved April 13, 2024.
  6. 1 2 Brown, Trevor (September 23, 2010). "Islamic Sharia law ban raises questions, concerns". The Norman Transcript . Retrieved April 23, 2024.
  7. 1 2 "Roll Call: OK HJR1056". LegiScan. 2010. Retrieved July 19, 2024.
  8. ↑ Weigel, David (April 4, 2011). "Sharia, USA". Slate . Retrieved April 23, 2024.
  9. ↑ "Tulsa Beacon voting endorsements for the Nov. 2 Election". Tulsa Beacon . October 28, 2010. Archived from the original on October 31, 2010. Retrieved April 23, 2024.
  10. ↑ Toensing, Gale Courey (September 13, 2018) [October 26, 2010]. "Oklahoma lawmakers aim to ban international and Sharia law from state courts". ICT News . Retrieved April 23, 2024.
  11. ↑ "Our SQ choices". The Oklahoman . October 18, 2010. Retrieved April 23, 2024.
  12. ↑ "Our take on the state questions". Enid News & Eagle . October 18, 2010. Retrieved April 23, 2024.
  13. ↑ "State questions". October 24, 2010. Archived from the original on October 31, 2010. Retrieved April 23, 2024.
  14. ↑ "OUR VIEW: State Questions 754, 755". October 27, 2010. Archived from the original on September 20, 2011. Retrieved April 23, 2024.
  15. ↑ SoonerPoll
  16. ↑ SoonerPoll
  17. ↑ SoonerPoll
  18. 1 2 "Election Night Results by County for 10/02/2010" (PDF). Oklahoma Secretary of State . pp. 138–139.
  19. ↑ Hagerty, Barbara Bradley (January 10, 2012). "Court Strikes Down Oklahoma Shariah Ban" . Retrieved April 23, 2024.
  20. ↑ Mears, Bill. "Judge issues permanent injunction on Oklahoma Sharia law ban". CNN . Retrieved April 23, 2024.
  21. ↑ Reilly, Ryan J. (August 15, 2013). "Oklahoma Anti-Sharia Constitutional Amendment Struck Down By Federal Judge". HuffPost . Retrieved April 23, 2024.
  22. 1 2 3 4 5 Sheeder, Renee (2012–2013). "Awad v. Ziriax: The Tenth Circuit's defense against the power of religious majority factions". Denver University Law Review . 90: 801–824.
  23. ↑ Schlachtenhaufen, Mark (March 18, 2011). "CAIR-OK launches anti-Sharia bill campaign". Norman Transcript . Retrieved April 23, 2024.
  24. ↑ "Lawmaker plans to revise bill prohibiting Sharia law". Muskogee Phoenix . Associated Press. January 11, 2012. Retrieved April 23, 2024.
  25. ↑ Quazilbash, Homa (April 5, 2012). "Update: Bill Banning Sharia Law In Oklahoma Killed In Committee". KTUL . Retrieved April 23, 2024.
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