Thursday, January 12, 2012

The Bill Of Rights Only Works When It Is Enforced

Federal Court of Appeals Rejects Anti-Muslim Oklahoma Law

Special To
The Cool Justice Report

In the midst of an economic crisis, one might think that purported conservative politicians would hesitate to flush tens of thousands of dollars of taxpayer money down the drain.

Not so in the state of Oklahoma, where a so-called “Save Our State” Amendment was put to a referendum in November 2010, attempting to amend the Oklahoma state constitution to bar courts within its jurisdiction from considering Sharia (Muslim religious) law and international law in rendering legal decisions. A January 10, 2012 decision by the federal court of appeals for the 10th Circuit, Awad v. Ziriax, has upheld an injunction by a federal district court judge barring the certification of the proposed amendment as part of the Oklahoma constitution because it is on its face unconstitutional and discriminatory.

No word on whether those same politicians will try to push the case to the U.S. Supreme Court. However, it is hard to imagine that the nation's highest court would even bother to hear the case.

The “Save Our State” amendment, though approved by a shocking 70 percent of Oklahoma voters, flagrantly violates the First Amendment to the United States Constitution by barring only the legal precepts of one religion – Islam – from the legal decision-making process. In addition – though it is predictable that this aspect of the proposed amendment will not be widely discussed by the media -- its attempt to prohibit judges from considering international law ignores the role of treaties and international agreements ratified by the U.S. government as the supreme law of the land under Article 6 of the U.S. Constitution.

Nonetheless, the 10th Circuit decision ought to be a useful primer for those politicians who weren't in their high school civics class on the day they discussed the U.S. Constitution.

  • Decision by 10th Circuit U.S. Court of Appeals

  • The “Save Our State” campaign attempted to amend the Oklahoma state constitution by popular vote in the November 2010 election, adding a section that instructed that “the courts shall not consider international law or Sharia Law” in rendering legal decisions. Sadly, upon the submission of the proposed amendment to be included on the ballot, the Oklahoma Attorney General declined to offer an opinion regarding the constitutionality of the amendment. How do you spell negligence?

    Placed before the voters as State Question 755, the proposed amendment received would have become law but for an immediate challenge by the Council on American-Islamic Relations (CAIR) in the form of an application for a preliminary injunction. The injunction was granted on November 29, 2010, by U.S. District Court Judge Vicki Miles-LaGrange. An appeal to the 10th Circuit followed.

    The 10th Circuit found that a state law that on its face discriminates among different religions must be subjected to “strict scrutiny” – the most difficult standard for a state to meet, requiring a compelling governmental interest for such legislation. The court had no difficulty finding that Oklahoma did not meet that standard, since its brief literally said no more on that point than that “Oklahoma certainly has a compelling interest in determining what law is applied in Oklahoma courts.” It would be an understatement and probably an insult to America's law students to say that a first year law student would understand why this “argument” would be inadequate to pass constitutional muster.

    The federal court did not even need to get to the other obvious basis for barring the proposed amendment: that its language prohibiting Oklahoma courts from considering international law in making decisions is in violation of Article 6 of the U.S. Constitution. The language often referred to as the Supremacy Clause in Article 6 states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

    In other words, when the U.S. ratifies a treaty among nations, the content of that treaty becomes not only enforceable as a matter of international law, but it trumps any contrary provision of state law. Though one might immediately think of this as applying to well-known treaties such as the Geneva Conventions that establish the standards of international law for the humanitarian treatment of the victims of war, the fact is that matters of international law regulating business transactions, banking, and other matters routinely come before both state and federal courts. In other words, no Oklahoma politician that wasn't a brick shy of a load could have seriously doubted that the “Save Our State” Amendment could possibly pass constitutional muster.

    With the upsurge in progressive political action occasioned by Occupy Wall Street and its manifestations around the country, and with popular frustration at both the actions and the inaction of the federal government on critical issues facing working people, it is heard in some quarters that the problem is that the federal government is “too big” and that political power should devolve to the state or even local level. This view is in particular heard among frustrated liberals who are attracted to the right wing populism of Ron Paul and his ilk – and especially those who live in states where such bedrock constitutional principles as the separation of church and state and the right to privacy are firmly embedded. The legal battle over the “Save Our State” Amendment and the setback for anti-Muslim bigots reflected in the 10th Circuit's decision is a reminder that the Bill of Rights is not self-enforcing.

    Peter Goselin is a Connecticut attorney focusing on the workplace rights of workers and labor unions, and free speech at work and in the community.

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