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Defending the Indefensible: Oklahoma Struggles to Salvage Its Unconstitutional Sharia Ban

Daniel Mach,
ACLU Program on Freedom of Religion and Belief
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September 13, 2011

Are all faiths equal under the law? Does the fundamental right to worship in this country depend on approval of the majority? These questions lie at the heart of a legal challenge by the American Civil Liberties Union and the Council on American-Islamic Relations to Oklahoma’s “Save Our State Amendment,” which bars state courts from applying — or even considering — Islamic “Sharia law” and “international law.”

Last November, the federal district court rejected this attempt to use the state constitution to condone bigotry and blocked the amendment from taking effect. Yesterday, a federal appellate court in Denver heard arguments in the state’s appeal of that decision, but the state should fare no better this time around..

The “Save Our State Amendment” was approved by Oklahoma voters in November 2010, in a nationwide climate of growing anti-Muslim bias. Proponents relied on an utterly fabricated threat of Sharia law overtaking U.S. courts, a mythical menace that, supporters argued, somehow necessitated the discriminatory amendment.

When endorsing the measure, legislative sponsors made no bones about their intended target, decrying the supposed “onslaught” of Sharia law, and warning against Muslims “coming to take away our liberties from your children, my children, and our grandchildren.” But it’s one thing to scare voters by scapegoating a religious minority in an election. It’s quite another to defend state-sanctioned discrimination in open court.

So perhaps it was no surprise that, at Monday’s oral argument, Oklahoma essentially disavowed the “Save Our State Amendment.” The state’s attorney repeatedly sought to rewrite the amendment, arguing that it somehow doesn’t mean what it says. The amendment, Oklahoma argued to the three-judge appellate panel, doesn’t target a particular religion, but instead mentions Sharia only by way of clarification or illustration. But the state’s latest spin ignores both the plain text of the amendment — which expressly singles out Sharia law, and only Sharia law, for disfavored treatment — and the hostile, anti-Muslim climate in which it arose.

The government should never play favorites with religion, and Oklahoma’s “Save Our State Amendment” does just that. It tramples the free exercise rights of a minority faith, and sends a powerful, clear message that Muslims are religious and political outsiders in their own state. Whatever its arguments on appeal, Oklahoma can’t escape the basic fact that in the U.S., we simply don’t put religious liberty up for a vote.

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