On May 6, 2010, Oklahoma State Senator Anthony Sykes announced to his constituents that lawmakers had “just finalized [work on a bill] outlawing Sharia law being considered by courts.” The Sykes Update for May 6, 2010, at 0:57–1:08, available at www.youtube.com/watch?v=wiypaGZar7g. His statement marked the beginning of what would be a multiyear wave of legislation introduced across the country to legislate against Sharia law—which, for Muslims, constitutes the body of religious traditions that guide their practice of Islam. Since 2010, seventy-eight anti-Muslim bills or constitutional amendments have been introduced in thirty-one states and the U.S. Congress. Corey P. Saylor & Robert S. McCaw, Council on Am.-Islamic Relations, Written Statement of the Council on American-Islamic Relations on Hate Crimes and the Threat of Domestic Extremism Submitted to the United States Senate Committee on the Judiciary, at 6 (2012), www.cair.com/Portals/0/pdf/CAIR-2012-Hate-Crimes-and-the-Threat-of-Domestic-Extremism-Testimony.pdf. Six of these measures successfully made their way through the legislative process.
These bills have spanned the gamut between ham-handed measures—including an Arizona bill that would have banned “karma”—that blatantly telegraphed their discriminatory aims to facially neutral bills that utilize arcane language to disguise their true intent. Ariz. H.B. 2582 (Feb. 7, 2011), www.azleg.gov/legtext/50leg/1r/bills/hb2582p.pdf. On one end, in March 2011, Tennessee considered a bill declaring that the “knowing adherence to sharia . . . is prima facie evidence of an act in support of the overthrow of the United States government.” Tenn. S.B. 1028, § 39-13-902(11) (2011), www.capitol.
tn.gov/Bills/107/Bill/SB1028.pdf. What the bill ominously termed “knowing adherence to sharia” is, for American Muslims, simply the practice of their faith: praying, observing religious customs, maintaining a moral commitment to the universal values contained in Islam, and so on. But for the offense of practicing Islam with others in Tennessee, Tennessee’s bill would have authorized the attorney general to designate such persons as a “Sharia organization” and punished material support to designated groups for “imprisonment of not less than fifteen (15) years.” Id. § 39-13-906.
On the other end, the majority of the bills states have considered do not mention Islam or Sharia law in their text, though public debate about these measures has made clear that Islam is the legislative target. Instead, these measures ban state courts from enforcing any “foreign law, legal code, or system” and define this content in a way that would likely treat the religious traditions of Islam differently than those from other faiths. See, e.g., House Substitute for S.B. No. 79, 2012 Kan. Sess. Laws § 4. This differential treatment was corroborated when a Kansas state judge recently noted that the state’s facially neutral anti-Muslim bill, based on the same language as other states’ anti-Muslim bills, would prevent him from enforcing an Islamic prenuptial agreement, not due to its content, but because it “stem[s] from jurisdictions that do not separate church and state, and may, in fact embed discrimination through religious doctrine.” Soleimani v. Soleimani, Case No. 11-cv-4668, at *29, (Kan. D. Ct. Aug. 28, 2012), available at www.volokh.com/wp-content/uploads/2012/09/soleimani.pdf. Indeed, the decision suggested that, in such cases, “judicial sensitivity to Establishment Clause prohibitions” would be misplaced, implying that there may be some type of Muslim exception to the Establishment Clause. Id. at *30.
Thus far, only one of these anti-Muslim measures has been challenged: Oklahoma’s State Question 755. Senator Sykes was ultimately successful in his attempt to put a measure on the ballot to amend Oklahoma’s constitution to ban courts in that state from “considering Sharia Law.” H.R.J. Res. 1056, State Question No. 755 (Okla. May 25, 2010) (enrolled), www.sos.ok.gov/documents/questions/755.pdf. And, unfortunately, 70 percent of Oklahoma voters favored the amendment. Awad v. Ziriax, 754 F. Supp. 2d 1298, 1302 (W.D. Okla. 2010). But it was challenged by a Muslim who incorporated into his will a reference to his faith that, under the new anti-Muslim law, would have prevented an Oklahoma court from probating his will. In setting aside almost 700,000 votes, the federal court began its decision with the following:
This order addresses issues that go to the very foundation of our country, our Constitution, and particularly, the Bill of Rights. Throughout the course of our country’s history, the will of the “majority” has on occasion conflicted with the constitutional rights of individuals, an occurrence which our founders foresaw and provided for through the Bill of Rights.
Id. at 1301.
The court found that the anti-Muslim amendment violated both the Establishment Clause—because it “conveys an official government message of disapproval and hostility toward his religious beliefs”—and the Free Exercise Clause—because the plaintiff’s will, as a result of the amendment, “will likely be unable to be probated.” Id. at 1304. The Tenth Circuit has since affirmed the injunction against State Question No. 755. Id. at 1304.
While it is disheartening to see the anti-Muslim hostility mature into efforts to legislate against Islam, America’s deeply embedded traditions of religious freedom are perhaps uniquely capable of meeting this challenge. Laws that discriminate against American Muslims are not likely to withstand judicial scrutiny. So it is good news that the First Amendment’s religious clauses remain the law of the land. And so long as that is the case, this too—like all those other efforts to discriminate against religious minorities in the past—shall pass.
Gadeir Abbas is a staff attorney for the Council on American-Islamic Relations (CAIR), America’s largest Muslim civil liberties organization. At CAIR, Abbas litigates against zoning denials, anti-Muslim legislation, and watch-list placements, among other manifestations of religious discrimination against American Muslims.