John T. Parry (Lewis & Clark Law School) has posted Oklahoma’s Save Our State Amendment: Two Issues for the Appeal. The abstract follows. –JKH
This short essay discusses two issues relating to the pending appeal in the litigation over Oklahoma’s Save Our State Amendment.
First, the district court enjoined certification of the election results, with the result that none of the amendment can go into effect, not even the portions that have nothing to do with “Sharia Law” (which is the focus of the litigation). This essay suggests that the 10th circuit must consider whether the portions of the amendment that are unconstitutional can be severed from the rest (an issue that is not raised in any of the briefs), and I argue that the court should certify this issue to the Oklahoma Supreme Court.
Second, the district court made a finding of fact that “Sharia Law” — which the amendment equates with “Islamic Law” — is not really law. This finding is not necessary to support the district court’s religion clauses ruling. It is also (1) incorrect and (2) ultimately supportive of the arguments made by supporters of the amendment. I suggest that the 10th circuit reject this finding.