Oklahoma Can't "Save" Itself from the U.S. Constitution
& Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief
No state should deny its residents the essential right to exercise their religion. No state should target or disfavor any faith. No state should engage in actions that contravene the requirements of the U.S. Constitution, and no state should seek to limit the independence of the judiciary.
All of these values may seem self-evident and fundamental to our liberty, and they are. Yet these same principles were at the heart of a legal challenge brought by the American Civil Liberties Union and the Council on American-Islamic Relations to Oklahoma's so-called "Save Our State Amendment," which barred state courts from applying — or even considering — foreign law, international law, and Islamic "Sharia law."
Last week, a federal court struck down the "Save Our State Amendment," sending an important reminder that "[w]hile the public has an interest in the will of the voters being carried out, … the public has a more profound and long-term interest in upholding an individual's constitutional rights."
In essence, the court took a stand against religious intolerance. The amendment was approved by Oklahoma voters in November 2010, as proponents across the state and nation warned of a mythical "Sharia threat" that was somehow poised to overtake the judicial system. When pressed, legislative sponsors in Oklahoma couldn't cite even a single misstep by the state's courts, let alone any "onslaught" of Sharia law in Oklahoma or elsewhere in the U.S. But that didn't stop proponents from sounding the false alarm and warning, for example, that Muslims were "coming here to take away those liberties and freedoms from your children, my children, and our grandchildren." Fortunately, the court ignored this groundless fear-mongering, and had no trouble concluding last week that the "Save Our State Amendment" wrongly targeted one faith for official disfavored treatment. Echoing an earlier appellate court decision, the district court deemed the measure an unmistakable, blatant violation of the First Amendment's religious freedom guarantees.
Another key element of the "Save Our State Amendment" — the prohibition on judicial consideration of foreign and international law — also clearly violated the federal Constitution. The U.S. Supreme Court has long held that "international law is part of our law," and the U.S. Constitution expressly requires ratified treaties to be regarded as the "supreme law of the land." By preventing Oklahoma's judges from considering international treaties signed by the President and ratified by the Senate, Oklahoma's amendment was in direct conflict with the U.S. Constitution. For two centuries, moreover, American courts (including the Supreme Court) have been considering, and, when appropriate, applying foreign and international law, including in seminal cases like Marbury v. Madison. Attempts to prevent Oklahoma judges from appropriately considering foreign or international law raise very serious issues, including the separation of powers and the independence of Oklahoma's courts and judges.
It may be an effective political strategy to demonize religious minorities or to oppose anything foreign or international, but it also undermines our liberties and coarsens our political discourse. The federal court in Oklahoma got it right and took a clear stand for justice, but we can't always rely on judicial action. It's critical, therefore, to defeat these bigoted and unnecessary measures before they become law and to hold our elected leaders to a higher standard of accountability to uphold the Constitution.