Tenth Circuit Says Oklahoma Anti-Sharia Law Is Likely Unconstitutional

The decision is Awad v. Ziriax (10th Cir. Jan. 10, 2012), which upholds the trial judge’s decision to issue a preliminary injunction. I hope to have more on this later this afternoon. Thanks to Opher Banarie for the pointer.

UPDATE: The court basically said that the Oklahoma ban on courts’ use of Sharia law violates the Establishment Clause no-discrimination-against-religion principle, set forth by the Court in Larson v. Valente (1982), and that plaintiff has standing to challenge the law because it “expressly condemns his religion and exposes him and other Muslims in Oklahoma to disfavored treatment.”

As I argued when the district court decision was handed down, I’m not sure that this is right, because

  1. I think that even without the amendment’s Sharia law ban provision secular courts can’t consider Sharia law — or any other religious law ([UPDATE: except insofar as they are trying to determine the law of a foreign country that incorporates Sharia law on this point, which the Oklahoma amendment’s separate ban on the use of foreign law would preclude]) — and
  2. in the absence of any tangible discrimination, government praise or condemnation of religion in a statute or other government statement somewhere on the books (as opposed to in a monument or display that the public generally sees) doesn’t suffice to grant standing to offended parties.

But the court didn’t take the view I note in item 1 (on which my point in item 2 depends), perhaps because the very fact that the state enacted the law suggests that it was intended to do something tangible, and the court may well have assumed that the law would indeed have had the intended effect.