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Can U.S. States Ban Islamic Law?—A Commentary by Adam Cohen

The following commentary was posted on Time.com on January 17, 2012.

Can U.S. States Ban Islamic Law?
By Adam Cohen

Do the people of Oklahoma need to be protected from Sharia law? Clearly: no. There is no evidence that religious Islamic law — whose rules on matters like inheritance and divorce — is sweeping across the Sooner State. But in 2010, Oklahoma voters seemed to feel otherwise. They passed a referendum banning the state’s courts from imposing Sharia on them, despite the fact that Muslims are less than 1% of the state’s population and have not exactly taken over the state court system. Last week, a federal appeals court affirmed a court order that blocked the law from taking effect. The driving force behind the referendum, the court said, was not solving an actual problem — it was religious bigotry.

Oklahoma is hardly the first state to use a referendum to try to oppress a minority group. There have been other ballot initiatives that have targeted blacks and gay people. When referendums are misused in this way, the courts have had a generally good record of stepping in and protecting the rights of minorities.

Oklahoma’s referendum got off to a dubious start. When Republican state senator, Rex Duncan, introduced it, he could not point to any Oklahoma courts that were actually applying Sharia law. Still, Duncan insisted that the ban was needed as a “pre-emptive strike,” and when the referendum was put on the ballot, the scare-mongerers were quick to rally around it. Shortly before the voters went to the polls, the Washington-based Center for Security Policy released “Sharia: The Threat to America” — a report that suggested there is a “direct tie” between Sharia and terrorist attacks on the United States.

Oklahoma voters backed the referendum, by a 70%-30% margin, and opponents sued, charging that the new law violated the First Amendment’s Establishment Clause, which bars government from choosing a favored religion. The referendum’s defenders tried to argue that it was religiously neutral — that it actually banned all religious laws from Oklahoma’s courts. But the U.S. Court of Appeals for the 10th Circuit agreed with the opponents, pointing out that the only religious law actually mentioned in the ban was Sharia. The court also emphasized that the defenders of the ban had been unable to cite “even a single instance where an Oklahoma court had applied Sharia law,” much less an instance in which Sharia law “had resulted in concrete problems in Oklahoma.”

Referendums can play a useful role in democracy — sometimes it makes sense to let the voters do an end-run around legislators and special interests and turn their will into law. In recent years, referendums have been used to raise the minimum wage in some states and to legalize medical marijuana in others. Referendums like these are direct democracy at their best: they allow voters to expand the rights of all citizens.

But referendums also have a dark side: they can be an easy way for the majority to oppress unpopular minorities. Over the years, organizers have put many referendums on the ballot that target blacks, gays and lesbians and other groups. In his dissent from Plessy v. Ferguson — the infamous 1896 Supreme Court ruling upholding racial segregation — Justice John Marshall Harlan declared that the Constitution “neither knows nor tolerates classes among citizens.” In blocking the Oklahoma Sharia ban, the courts are living up to this credo — by preventing the majority from ganging up on the minority.

Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are solely his own.