Gallagher forwards claim that courts “are increasingly” using Sharia law in decisions

From the November 9 edition of Fox News' America Live:

GALLAGHER: CAIR, the Council of American-Islamic Relations says the amendment passed in Oklahoma violates the First Amendment clause that bans government from making laws respecting the establishment of religion. Other Muslims says this measure singles out the Muslim faith but does not single out other faiths.

[...]

GALLAHGER: But the Oklahoma lawmaker who sponsored this measure says the courts are increasingly consulting and using Sharia law to decide matters pertaining to U.S. Muslims in this country. Listen to him.

OKLAHOMA STATE REP. REX DUNCAN (R) (video clip): Seventy percent of Oklahomans want to save their courts and have courts follow and interpret the law that's before them and not to legislate from the bench.

GALLAGHER: Just for a little context here. Sharia law is based on the Quran, the teaching of the prophet Mohammed. But in the various countries where it is practiced the interpretation, Megyn, widely differs.

Sponsor of the Oklahoma measure hasn't pointed to any times when Sharia law was successfully applied

Sponsor of Oklahoma measure: Sharia law “It's not an imminent threat in Oklahoma.” ABC News reported on June 14 that Rex Duncan, the sponsor of the ballot measure in question, said that the use of Sharia law was something he feared in the future, but no Oklahoma court has applied Sharia law:

Oklahoma has few Muslims -- only 30,000 out of a population of 3.7 million. The prospect of sharia being applied there seems remote. But a chief architect of the measure, Republican State Rep. Rex Duncan, calls the proposed ban a necessary “preemptive strike” against Islamic law coming to the state.

“I see this in the future somewhere in America,” Duncan, who chairs the state House Judiciary Committee, told ABC News. “It's not an imminent threat in Oklahoma yet, but it's a storm on the horizon in other states.”

CNN similarly reported: “There has never been a previous case in the state in which Sharia law was applied, said Rick Tepker, the first member of the University of Oklahoma School of Law faculty to try a case before the U.S. Supreme Court.”

ABC News: Legal experts could think of no instance in which a judge had used Sharia. The ABC News article further reported:

Legal experts contacted by ABC News said they did not know of one instance of a judge in the U.S. invoking sharia in rendering a decision.

“Cases of first impression are rare,” said Jim Cohen, a professor at the Fordham University School of Law in New York City, adding, “I have never heard of a case” involving sharia.

Cohen added that he questions whether the proposed amendment would pass constitutional muster.

“Our federal system and our state system is in part governed by the concept of separation of powers. It's far from clear that the Oklahoma legislature can restrict what a separate branch of government can consider in terms of doing its job -- in this case, deciding cases,” he said.

Sponsor of Oklahoma measure could point to only one U.S. case in which Sharia was applied, and that case was overturned on appeal. The New York Times similarly reported that Duncan “knew of no judge ever citing Sharia law in a ruling in Oklahoma.” The Times added that Duncan could point to only one case in the nation in which Sharia was cited, a New Jersey case that was overturned on appeal. From an October 5 Times article:

In Oklahoma, the ballot will feature a measure to ban state judges from using Islamic law, called Sharia, in court decisions, even though it has never happened.

[...]

State Representative Rex Duncan, who is chairman of the state judiciary panel and the lead sponsor of the measure, said he knew of no judge ever citing Sharia law in a ruling in Oklahoma and could point to only one case in the country where the law had been cited. (In that case, a Family Court judge in New Jersey cited a man's Islamic faith in denying a restraining order to a woman who said she had been raped by her husband. The ruling was overturned by a higher court.) But Mr. Duncan said the measure was “a pre-emptive strike.”

Federal judge identified serious constitutional problems with Oklahoma ballot measure

Federal judge: The plaintiff “has made a preliminary showing” that the ballot measure violates the Establishment Clause. On November 9, Oklahoma federal district judge Vicki Miles-LaGrange granted a temporary restraining order to a person challenging the constitutionality of the ballot measure. The order prevents enforcement of the ballot measure until further arguments can be heard. Miles-LaGrange found that the plaintiff had made a preliminary showing that the measure is unconstitutional because it “does not have a secular purpose, that its primary purpose inhibits religion, and that it fosters an excessive government entanglement with religion.”

From Miles-LaGrange's opinion:

Plaintiff further contends that because the amendment directs Oklahoma's state courts to make intrusive judgments regarding contested questions of religious belief or practice, the amendment excessively entangles Oklahoma in plaintiff's faith. Specifically, the amendment forbids state courts from considering Sharia Law in any of its proceedings. Plaintiff asserts that there is no single religious text that all Muslims accept as the exclusive source for what constitutes Sharia Law and, consequently, to comply with the amendment, state courts will be faced with determining the content of Sharia Law.

Having reviewed plaintiff's complaint and memorandum, and having heard the arguments presented at the hearing, the Court finds plaintiff has shown a substantial likelihood of success on the merits of his claim asserting a violation of the Establishment Clause. Specifically, the Court finds that plaintiff has made a preliminary showing that State Question 755's amendment does not have a secular purpose, that its primary purpose inhibits religion, and that it fosters an excessive government entanglement with religion. (retrieved via PACER)

Federal judge: The plaintiff “has made a preliminary showing” that the ballot measure violates the Free Exercise Clause. Miles-LaGrange also found that the plaintiff had made a preliminary showing that the ballot measure was unconstitutional because it “is not facially neutral, discriminates against a specific religious belief, and prohibits conduct because it is undertaken for religious reasons.” From Miles-LaGrange's opinion:

Having reviewed plaintiff's complaint and memorandum, and having heard the arguments presented at the hearing, the Court finds plaintiff has shown a substantial likelihood of success on the merits of his claim asserting a violation of the Free Exercise Clause. Specifically, the Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is not facially neutral, discriminates against a specific religious belief, and prohibits conduct because it is undertaken for religious reasons. Additionally, the Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is neither justified by any compelling interest nor narrowly tailored. (retrieved via PACER)