Mr. Awad suffers a form of \u201cpersonal and unwelcome contact\u201d with an amendment to the Oklahoma Constitution that would target his religion for disfavored treatment. As a Muslim and citizen of Oklahoma, Mr. Awad is \u201cdirectly affected by the law[] . . . against which [his] complaints are directed.\u201d<\/p>\n<\/blockquote>\n

So simply having one’s religion singled out for condemnation by the state is enough of an injury to grant standing, under this standard: “a constitutional directive of exclusion and disfavored treatment of a particular religious legal tradition” is a tangible injury.<\/p>\n

Below, reacting to my preliminary post and an initial real of the opinion, commenter Jaybird<\/strong> asks, “How can this be an Establishment Clause case”? An obvious enough question — this would seem to be a dis<\/strong><\/em>-Establishment of religion, not an Establishment. Personally, I don’t have a problem with this, as I see the Establishment Clause as requiring governmental neutrality with regards to matters of religion (as does the Free Exercise Clause, and as do both the Clauses when read in conjunction). But if you take a narrower read of that text than do I, you could conclude that the Establishment Clause only prohibits the creation of an official state religion. Or you could conclude that the Establishment Clause does not permit a state endorsement of a religion. I think the better read, though, is that it is the state weighing in on a matter of individual preference, a matter in which individuals ought to have personal autonomy. It is the state exceeding the legitimate and appropriate extent of its power. If an Oklahoman is interested in converting to Islam, the state of Oklahoma has no legitimate interest in the outcome of that person’s decision. The state weighing in and saying, “No, don’t do that, and here’s a disincentive to doing it to help make up your mind” opens the door too widely and too easily to the state then taking the next step of saying, “In fact, here’s an incentive to choosing Christianity instead,” and now we’re way down the slippery slope to Establishment.<\/p>\n

The Tenth takes a slightly different approach than I, citing to a lesser-known Establishment Clause case, Larson v. Valente<\/em> (1982) 456 U.S. 228. In Larson<\/em>, the state of Minnesota imposed heightened financial and tax reporting requirements on religious organizations that derived more than half of their funds from non-members. The Court found this law was aimed directly at groups like the Hare Krishnas which got money by approaching people at airports and generally making unpopular pests of themselves until they were paid to leave the person who did not wish to be proselytized to alone.<\/p>\n

The Larson<\/em> test provides that if a law discriminates among<\/em> various religions, it must be \u201cclosely fitted to the furtherance of any compelling interest asserted,\u201d else it is an unconstitutional Establishment, id.<\/em>at 255, because “[t]he State may not adopt programs or practices … which aid or oppose any religion … . This prohibition is absolute.” Id<\/em>. at 246. This is still a strict scrutiny inquiry, one which almost always dooms a state law (as it does here), but there is only a two-part test unlike the more complex and controversial Lemon<\/em> test. Under Larson<\/em>, the court first looks to see if the law tangibly benefits or harms a particular religion, and then searches for the existence of a compelling governmental interest justifying the discriminatory treatment.<\/p>\n

The law flunked this test. It singled out Sharia law specifically, and the state of Oklahoma failed to even identify an actual problem that the law was intended to address, much less to demonstrate why that problem was so important that the Constitution itself had to be balanced against it, or how the law as written did so in the careful, deferential, and narrow fashion demanded of such rare and exigent circumstances. Emphasizing the difference between a valid<\/em> state concern and a compelling<\/em> problem in need of an immediate solution, the Tenth Circuit indicated that there was no evidence of any concrete, actual problem concerning application of Sharia law in Oklahoma courts in the record; the courts ought not to permit exceptions to be carved into the Constitution based on mere speculation.<\/p>\n

Moving on, having found that Awad’s injuries would arise from the enactment of this law into the state’s Constitution, the Tenth Circuit says that Awad does not have to wait for that to actually happen, and thus to actually suffer the injury, in order to take legal action to prevent it from happening. This at least addresses the concern I raised last November, and I agree that a court can and should act to prevent a likely injury from occurring. But again I’m not 100% satisfied here — perhaps that is a result of my lack of familiarity with the mechanics of implementation of initiative constitutional amendments under Oklahoma law, a subject I would rarely encounter in my own law practice.<\/p>\n

This seems eminently and obviously the right decision. It’s simply obnoxious for a state to single out one religion and say “This one is bad.” And as I wrote back in 2010, about the only conceivably way in which Sharia law might enter Oklahoma’s courts is by way of enforcement of a private arbitration agreement choosing Sharia law as the substantive law of the case. Adults should be free to pick whatever decision-making structures they choose. The voters here succumbed to the hysterical fears of non-existent threats based on the ill-understood concepts of state legislators who clearly did not know any better. The District Court and now the Tenth Circuit have fulfilled their duties as the sober sentinels of the highest laws of our nation regardless of the vicissitudes of political popularity, and for this they deserve our thanks.<\/p>\n