Sunday, November 07, 2010
CAIR Challenges Constitutionality of Sharia Ban
For those following the story of Oklahoma's vote last week to ban state courts from "considering" sharia law, these developments are not particularly surprising. CAIR (Council on American-Islamic Relations) announced the filing of a lawsuit seeking a temporary restraining order and a preliminary injunction against implementation of the sharia law ban passed in Oklahoma (see previous post for more info). Here's the brief (and a local article).
It's hard for me to imagine that the state constitutional amendment does not violate both the Establishment and Free Exercise Clauses. First, it would appear to violate the Establishment Clause's own anti-discrimination principle (requiring neutrality between religion and religion, and between religion and nonreligion). Plus the amendment doesn't appear to be facially neutral and generally applicable - and I don't quite see an argument supporting the claim that the amendment is narrowly tailored (let's leave aside the compelling government interest part of the analysis).
But what about the imminent and irreparable harm prong of the TRO/PI analysis? I suspect both sides may take some ironic positions on the topic.
Critics of the amendment have emphasized in recent weeks that there simply haven't been any cases of sharia law in Oklahoma courts. While the current lawsuit seeks a TRO/PI largely on the grounds of immediate stigmatic harms, I wonder how much of a difficulty this might pose in claiming imminent/irreperable harm.
On the flipside, advocates of the amendment have, in the weeks leading up to the referendum, argued that there's an immediate need for the amendment - presumably to thwart an impending threat. If there's a claim of immediate need, it would sure seem like there's an implicit claim of immediate opportunities for application. Any thoughts?
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Federal courts in constitutional cases typically presume irreparable harm. The presumption could be overcome on a showing of an imminent harm. But I doubt such a showing could be made in this case. And imminence is rarely shown in any event.
Posted by: Howard Wasserman | Nov 7, 2010 10:23:39 PM
The new OK law may be mis-guided, but this does seem like a weak case to try to win on a PI (and a near-frivolous case for a TRO) because of the lack of imminence of harm. Why not seek declaratory relief, which would accomplish the same purpose w/o the PI baggage?
Posted by: David Levine | Nov 8, 2010 12:57:31 AM
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