Religion clauses

By Ryan Kiesel. Mr. Kiesel heads the ACS Oklahoma Lawyer Chapter and served in the Oklahoma House of Representatives from 2004 – 2010. He is currently in private practice in Oklahoma City and teaches a course in Politics and the Law as an adjunct professor at the University of Oklahoma College of Law.

In 2007, when members of the Oklahoma Legislature received copies of the Quran from the Governor’s Ethnic Advisory Council (disbanded by newly elected Gov. Mary Fallin), Rex Duncan, then a member of the House, issued a statement explaining that he would not accept the book and said of the Muslim faith, “Most Oklahomans do not endorse the idea of killing innocent women and children in the name of ideology.”

Nearly every Muslim in Oklahoma, or on the planet for that matter, would agree.

Of course, what then Representative, and now District Attorney Rex Duncan meant was that the Muslim faith and its adherents are inherently at war with everyone who does not believe as they do. So to “save our state,” Mr. Duncan launched an attack on the civil liberties of individuals who do not believe as he does. (Mr. Duncan and other lawmakers also received Bibles, but did not reject or disparage those religious texts.)

Mr. Duncan authored SQ 755, a ballot measure that appeared on the November 2010 ballot in Oklahoma. Duncan labeled SQ 755 a “pre-emptive strike” against efforts by Muslims and their liberal allies in the judiciary.

The language of the ballot measure targeted the non-threat of foreign or religious law from superseding state or federal law and sought to protect Oklahomans from the influences of foreign cultures.  It allegedly accomplished this by mandating that state courts, and especially liberal, activist judges keen on violating the establishment clause and imposing religious precepts on unsuspecting Oklahomans, keep their decisions free from the taint of foreign laws or customs.  It mentioned Sharia law specifically.

During the 2010 election, supporters of SQ 755 spread wildly inaccurate and prejudicial information to the electorate, telling voters that unless we amend Oklahoma’s Constitution, state courts would be forced to turn a cold shoulder to such crimes as domestic abuse, if those crimes were committed in the name of religion. Most candidates for office, Democrats and Republicans alike, endorsed SQ 755. Only a handful of candidates were willing to risk their political careers in defending their neighbors’ civil rights. On Election Day, SQ 755 was approved by an overwhelming majority of voters. (After the election, I appeared on MSNBC’s “Hardball with Chris Matthews,” to discuss SQ 755 and the politics of fear. See video of the segment here.)

Within days of the election, Muneer Awad, the newly minted Executive Director of CAIR-OK, filed a request for an injunction to prevent the Election Board from certifying the results of the election. You can read his brief here.

The Supreme Court majority this week took a significant swipe at the ability of courts to invalidate government policy that advances religious work, writes one of the nation’s leading constitutional law experts in a piece for The Huffington Post.

Taking a look at the 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, Geoffrey R. Stone, a distinguished law professor at the University of Chicago and chair of the ACS Board, says the majority decision, authored by the Court’s conservative wing, “carved a large hole out of the Establishment Clause of the First Amendment.”

Stone (pictured at an ACS National Convention) centers on the Supreme Court’s 1968 opinion in Flast v. Cohen, in which the Court found that taxpayers have standing to bring lawsuits challenging government action as a violation of the First Amendment’s Establishment Clause.

He writes that the high court’s majority in a 2007 and in this week’s opinion has turned away from Flast, in the process making it almost impossible for courts to invalidate unconstitutional government support of religion. Citing Justice Anthony Kennedy’s majority opinion in the Arizona tax credit case, Stone says Kennedy concluded “that taxpayers had no standing to challenge this program because it involved tax credits rather than government expenditures. In other words, if the government had given the funds directly to the organizations, the taxpayers would have standing, but because the government instead gave the funds to individuals to reimburse them for giving money to the organizations, the taxpayers did not have standing.”

Stone continues:

As Justice Elena Kagan explained in a powerful dissenting opinion, joined by Justice Breyer, Ginsburg and Sotomayor, this distinction "has as little basis in principle as it has in our precedent." Indeed, the conservatives' new approach "enables the government to end-run Flast's guarantee of access to the Judiciary." As Kagan observed, under the conservatives' analysis, a state that wants "to subsidize the ownership of crucifixes" can now simply grant a tax credit to individuals who buy crucifixes. That program would effectively be insulated from constitutional challenge, not because it is constitutional, but because no one would be permitted to raise the question.

For more analysis of the Arizona case, see this ACS guest blog post from Alex Luchenitser, a lawyer for Americans United for Separation of Church and State.