I find this a surprisingly poignant expression of why we ought to do good work even when no professor is giving us a grade.

My professor: “People’s practices die not because someone says, ‘You’re a terrible lawyer’; their phone just stops ringing.”

Alright, I’m a bit behind the news because I don’t read it. But I’m told that during the November 2nd election, Oklahoma issued a referendum to its citizens on a proposed amendment to Oklahoma’s constitution which would prohibit Oklahoma courts from considering international law or Sharia law. Muneer Awad, the executive director of Oklahoma’s branch of the Council on American-Islamic Relations, filed a lawsuit claiming that the amendment violates the Establishment Clause of the First Amendment. A federal district court judge issued a temporary restraining order on the certification of the results of the referendum, and a hearing on the matter is scheduled to begin today. A quick survey of web-based news sources produces all sorts of opinions, the best of which is on National Review Online. 

Read Muneer Awad’s argument. It’s not boring the way you’d think a legal memorandum would be. The gist of Awad’s argument is this: Awad claims (and I will trust him) that any state action hoping to avoid running afoul of the Establishment Clause must not fail any of three criteria: “State action should have (1) ‘a secular purpose,’ (2) a ‘primary effect’ that ‘neither advances nor inhibits religion,’ and (3) no tendency to foster ‘an excessive government entanglement with religion.'” 

(1) I guess some of the designers and supporters of the proposed amendment have said that they intended it as a means of preserving the Judeo-Christian founding principles of the United States. At first glance, that does sound a bit sectarian and not so secular. But their intentions aren’t actually part of the amendment. Oklahoma’s constitution will not say “Oklahoma shall be a Judeo-Christian state.” Awad notes that courts have considered the intentions of legislators in determining whether the legislation is truly secular. But if we validate their argument (by arguing with it) that they are protecting an essentially Judeo-Christian government, then the whole centuries-long existence of the United States is an unconstitutional state action.  

He quotes legislators expressing fear of the “looming threat of Sharia law.” Hold onto this point. They aren’t afraid of Islam, but Sharia law (at least in this circumstance). Sharia is surely an important and intrinsic part of Islam, but the conflation of the two is confusing.

(2) Does this prohibition inhibit religion? It inhibits the ability of Muslims to seek legal enforcement of religious doctrine from secular courts. Consider the following totally uncontroversial illustration: I used to be in a nonprofit organizations clinic at a law school. Clinics aren’t quite like other classes; we work with clients. Our clinic had three lawyers who watched us and signed off on all the drafting and document filing we did and all the legal advice we gave. I was in divinity school at the time, so I got some of the more religious organizations. I drafted bylaws that said “The board of directors shall be guided by the Holy Spirit.” The clinic’s lawyers like to tell funny stories about clients who want to put in their organizing documents that directors shall “walk in the ways of the Lord.” The lawyers laugh, “That’s totally unenforceable in court. No judge is going to say anyone is or isn’t walking in the ways of the Lord.” Are those reluctant judges inhibiting someone’s religious practice? 

On the other hand, if Sharia expressly permits or demands an action, and Oklahoma law prohibits it, then that might amount to inhibiting religion. For comparison, see the whole huge thing with the Roman Catholic church and canon law and child abuse. The Muslims aren’t the only ones with a legal code that sometimes competes with our secular legal system. For what it’s worth, I think I might be fine with a constitutional amendment that says Roman Catholic canon law doesn’t carry legal weight in our courts. 

(3) On the other hand, sometimes legislatures do actually codify the canon law and church polity of certain denominations. What do you all think of that? Government entanglement with religion is unavoidable to the extent that government must at some points touch religion, if only to say, “this is our boundary.” But how is allowing judges to consider Sharia law not more government entanglement in religion?

Let’s go back to the difference between Islam and Islamic law. In a separate part of his memorandum (page 19), Awad asserts that “because Muslims comprise a class ‘characterized by [an] unpopular trait,’ namely their adherence to Islam, the burden the Sharia Ban places on them reflects a ‘special likelihood of bias on the part of the ruling majority’ that the Court may review closely.” Is this really all about Muslims? Maybe. Is adherence to Islam an “unpopular trait”? By the numbers. Is it possible that seventy percent of voting Oklahomans are a biased ruling majority? Maybe. We should be ready to protect unpopular minorities. But is this really all about Muslims?

Or is it about law? 

Courthouses sometimes try to display the Ten Commandments. But no court will try to enforce the commandment against covetousness. Courts will enforce a prohibition on murder, but not because it is in the Ten Commandments. And if Sharia says we shouldn’t murder, the courts won’t allow murder just to avoid agreeing with Sharia.

What is the source of law in the United States? Legislatures. Judges. Administrative agencies. These people write out particular laws. But what legitimates our laws? We have to wade back into those Christian principles. (Eeek! Put on some rain boots, you don’t want to get this religious mess all over your shoes.) Jesus said, “Render unto Caesar what is Caesar’s and unto God what is God’s.” (Matthew 22:21) The Christian religion came about under a government (in some ways, a fairly secular one), and Christian teaching acknowledged the legitimacy of this non-Christian government (Romans 13:1-7). The New Testament recognizes that in some sense the “Prince of this world” is not God. Mankind has been left to govern itself. The laws of the United States may be based on Judeo-Christian principles or morality, but they are the laws of men, not of God. That’s probably the most foundational of our Judeo-Christian (read, honestly, “protestant Christian”) “founding” principles. The very first thing we acknowledge is that these are the laws of men.

Islamic law may simply be inescapably at odds with this understanding of law and human society. Islamic law is a legal code given by God himself, through the Koran and Mohammed. Islam had its beginnings in military territorial conquest. It never set out to be a religion existing beneath a secular government. And that tension is apparent in nearly every secular nation where sizable populations of Muslims reside. Once more, just for good measure, just to make sure I’m tarring everyone with the same brush, remember Roman Catholic canon law. Remember all the to-do about Kennedy and whether he owed his allegiance to Rome or to the American people. 

The United States is a pluralistic nation no matter what aspect of it you are measuring. Different political parties, different ethnicities, different religions. Democracy is a compromise. Governance is “bottom-up” before it is “top-down.” But then, of course, all those laws we men create are turned back upon us. No man is above the law; we live under rule of law. But how can law rule in any just way if everyone gets his own corpus of laws? Or if we divide up citizens by religion and declare that they must live under different laws? (Should we put on our equal protection hats for a moment?) In an earlier post of mine, I offered that two omnipotent beings cannot logically coexist. Neither can two separate legal systems, or two opposing laws.

The United States is a secular government. Every religious person has to deal with that fact, and it isn’t straightforward for any of us. So that nonprofit organizations legal clinic warns clients that certain of their bylaws will not be enforced by any court of law, and if we want to make covetousness illegal, we can write letters to our legislators until they write us such a law, and then it will be law–not because it’s in the Bible, but because our democratic process made it so. 

Refusing to honor Sharia law in secular courts has nothing (well, ahem, almost) to do with Islam. That “looming threat” isn’t quite Islam, but the erosion of a secular legal system which exists to extend the same legal protections to Muslims, Christians, Atheists, and everyone else.