[UPDATE, Wednesday 1:40 pm: I have a follow-up post that suggests there is a recent precedent supporting the district court’s decision that the plaintiff had standing, but that ultimately concludes — as did this initial post — that the weight of precedent cuts against finding standing.]
The decision was announced yesterday, but the opinion was apparently just released today. This is just a temporary restraining order, entered without even any written argument from the state; there’ll be a hearing on the request for the longer-lasting preliminary injunction on Nov. 22.
UPDATE [3:06 pm]: I’m no fan of the amendment, which would also apparently ban the use of foreign law in Oklahoma courts, even in situations — such as disputes about whether two people were validly married in a foreign country, enforcement of contracts that provide for the use of (say) British law, and tort litigation over conduct that happened in a foreign country — where foreign law has long been used under standard choice-of-law principles. And it’s also possible that the specific ban on the use of Sharia law might be unconstitutional, though that depends on exactly how the amendment is interpreted. But my tentative sense is that the plaintiff doesn’t have standing to challenge the ban on the use of Sharia.
1. The plaintiff argues that the amendment is unconstitutional because it impermissibly expresses governmental hostility to Islam, and provides for discrimination against Muslims. But the mere existence of the law does not, I think, amount to a constitutionally sufficient injury on which a lawsuit can be founded. (That’s the legal requirement of “standing.”)
It’s true that the Supreme Court has sometimes allowed standing in Establishment Clause cases based on symbolic injuries. But the Court has never allowed standing simply based on the existence of a law that allegedly conveys an impermissible message of endorsement, and lower courts have not accepted such claims. [UPDATE, Wednesday 1:40 pm: I have a follow-up post that suggests there is a recent precedent supporting the district court’s decision that the plaintiff had standing, but that ultimately concludes — as did this initial post — that the weight of precedent cuts against finding standing.] See Newdow v. Lefevre (9th Cir. 2010):
Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes “In God We Trust” is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the “unwelcome direct contact” with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an “abstract stigmatic injury” resulting from such outsider status is insufficient to confer standing.
People can have standing to object to the placement of religious symbols in particular places, when the objectors have “frequent regular contact” with the symbols (in the sense of often being around where the symbols are visible). But the presence of words in a law — even words that express endorsement or disapproval of religion — does not yield standing.
2. The plaintiff also argues that he suffers a more tangible injury, because his will directs the executor of the estate to follow Islamic law in arranging the funeral, and directs his wife to contribute to charity in accordance with Islamic law. The constitutional amendment, the plaintiff argues, bars courts from effectively probating the will in accordance to the plaintiff’s wishes, and thus unconstitutionally discriminates against plaintiff.
It’s not clear to me whether plaintiff might lack standing on the grounds that the harm will only happen some time in the future, or whether he could in principle have standing in such a case because the prospect of the courts’ inability to apply Sharia law in the future might cause sufficient harm to plaintiff now. (All this would involve the legal requirement of “ripeness.”)
But in any case, I think plaintiff has a deeper problem here: Even without the constitutional amendment, the First Amendment would bar American courts from “consider[ing] Sharia law” in interpreting the will. I blogged about this general point here, but the short version is this: Under the Court’s precedents (e.g., Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969)), secular courts may not resolve questions that require interpretation of religious doctrine.
This would include, I think, decisions about what Sharia law — or kosher law or the proper understanding of Presbyterian doctrine — requires, even when a contract or will calls for such interpretation. Thus, lower courts have held that, for instance, “a court [deciding a church property dispute] can invoke a secular interpretation of church deeds, by-laws and canons, thereby avoiding judicial entanglement in issues of religious doctrine, polity and practice. When the application of this standard requires judicial involvement in a [religious] doctrinal question, however, it may not be relied upon.” “[P]rovisions in deeds or in denomination’s constitution for the reversion of local church property to the general church, if conditioned upon a finding of departure from doctrine, could not be civilly enforced [quoting and endorsing a concurring opinion in a different Supreme Court case].” Likewisee, see this case, which refused to decide whether a church “cease[d] to be a Southern Baptist Church,” language that appeared in the church’s bylaws and that would be judicially interpretable if it hadn’t required resolution of questions of religious doctrine.
So the amendment would thus have no tangible effect on the probate of plaintiff’s will. The will’s references to Sharia would be unenforceable in secular courts even without the amendments, just as terms in a will that require compliance with Orthodox Jewish doctrine or with Southern Baptist doctrine could not be enforced. (Terms in a will that expressly set forth certain secularly determinable requirements would be enforceable, even if the requirements were religiously motivated; but that remains true under the Oklahoma constitutional amendment as well.)
3. More broadly, it’s hard to tell what exactly the Oklahoma amendment would do. It might or might not bar the consideration of Sharia Law in cases that call for the application of foreign law, whether, say, Saudi contract law or Israeli family law applicable to Muslims. But given the amendment’s broader ban on the use of foreign law, I don’t think the amendment would in fact discriminate against Sharia law in this respect.
If the amendment banned religious exemption claims brought by Muslims under existing religious accommodation rules that would otherwise apply to a wide range of religions, then it would be unconstitutionally discriminatory. But it’s not clear that considering such accommodation requests would be seen as “considering … Sharia Law”; it might well just be seen as considering the particular claimant’s sincere religious beliefs, with no requirement for the courts to consider their relationship with Sharia.
This is further reason, I think, for federal courts to abstain from deciding whether the amendment is unconstitutional until they actually have someone before them to whom the amendment will be applied (that’s the “standing” requirement), and until they can tell — likely based on state court decisions — just what the amendment means (that’s often labeled the Pullman abstention doctrine. And while that still leaves the general objection that the very existence of the law unconstitutionally expresses disapproval of Islam, I doubt that under current law an objector has standing to bring such a challenge, for the reasons I mentioned in item 1.