Awad v. Ziriax, Case No. CIV–10–1186–M.

• Decision Date: 29 November 2010
• Docket Number: Case No. CIV–10–1186–M.
• Citation: 754 F.Supp.2d 1298
• Parties: Muneer AWAD, Plaintiff,v.Paul ZIRIAX, Agency Head, Oklahoma State Board of Elections; Thomas Prince, Chairman of the Board, Oklahoma State Board of Elections; Ramon Watkins, Board Member, Oklahoma State Board of Elections; Susan Turpen, Board Member, Oklahoma State Board of Elections, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

754 F.Supp.2d 1298

Muneer AWAD, Plaintiff,

v.Paul ZIRIAX, Agency Head, Oklahoma State Board of Elections; Thomas Prince, Chairman of the Board, Oklahoma State Board of Elections; Ramon Watkins, Board Member, Oklahoma State Board of Elections; Susan Turpen, Board Member, Oklahoma State Board of Elections, Defendants.

Case No. CIV–10–1186–M.

United States District Court, W.D. Oklahoma.

Nov. 29, 2010.

Michael Salem, Salem Law Offices, Norman, OK, for Plaintiff.Scott D. Boughton, Attorney General's Office, Oklahoma City, OK, for Defendants.

ORDERVICKI MILES–LaGRANGE, Chief Judge.

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. As the United States Supreme Court has stated:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

Before the Court is plaintiff's Complaint Seeking a Temporary Restraining Order and Preliminary Injunction, filed November 4, 2010. On November 16, 2010, defendants filed their Response to Plaintiff's Motion for Preliminary Injunction. On that same date, amicus curiae United States Border Control, United States Border Control Foundation, Lincoln Institute for Research and Education, and Conservative Legal Defense and Education Fund filed an Amicus Curiae Brief in Opposition to Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction. On November 18, 2010, plaintiff filed his reply. On November 22, 2010, the Court conducted a hearing on plaintiff's motion for a preliminary injunction. Based upon the pleadings that have been filed and the evidence submitted at the hearing ¹, the Court makes its determination.

I. Introduction

State Question 755, which was on Oklahoma's November 2, 2010 ballot, provides:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

State Question 755 was put on the ballot through the legislative adoption of Enrolled House Joint Resolution 1056. Said resolution proposes to amend Section 1 of Article VII of the Oklahoma Constitution by adding the following section:

C. The Courts provided for in subsection A of this section when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Enr. H.J.R. No. 1056 at 2. Additionally, said resolution provides that the above section shall be known as the “Save Our State Amendment”. Id.

Election results show that 70.08 per cent of the voters approved State Question 755. Once the Oklahoma State Board of Elections certifies the election results, the amendment set forth above will become a part of the Oklahoma Constitution.

On November 4, 2010, plaintiff filed the instant action, challenging the constitutionality of State Question 755's amendment to the Oklahoma Constitution. Specifically, plaintiff asserts that the ban on the state courts' use and consideration of Sharia Law violates the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution. In his complaint, plaintiff, pursuant to Federal Rule of Civil Procedure 65, moves the Court to enter a preliminary injunction enjoining defendants from certifying the election results for State Question 755 until this Court rules on the merits of plaintiff's claims.

II. Standing

Under Article III, federal courts have jurisdiction only to decide “Cases” and “Controversies.” U.S. Const. art. III, § 2. An essential part of the case-or-controversy requirement is the concept that a plaintiff must have standing.

A party has standing to pursue a claim in federal court only if: (1) it suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) that injury is fairly traceable to the challenged action of the defendant rather than some third party not before the court; and (3) that injury is likely to be redressed by a favorable decision.

Hydro Res., Inc. v. United States Envtl. Prot. Agency, 608 F.3d 1131, 1144 (10th Cir.2010) (internal quotations and citation omitted).

In their response, defendants assert that plaintiff has not suffered an “injury in fact” and, therefore, lacks standing to bring this action.² Specifically, defendants assert that plaintiff has suffered no harm and will suffer no harm if defendants certify the election results. Defendants contend that plaintiff will be able to engage in the same daily activities after the certification of the election results as he is able to engage in today. Further, defendants contend that plaintiff's claim that the proposed amendment condemns his religion is a personal opinion, rather than a legal argument and that his claim that the amendment will invalidate his last will and testament is speculation.

“For purposes of the standing inquiry, the question is not whether the alleged injury rises to the level of a constitutional violation. That is the issue on the merits. For standing purposes, [courts] ask only if there was an injury in fact, caused by the challenged action and redressable in court.” Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1088 (10th Cir.2006). In determining whether a plaintiff has standing, the Court must assume plaintiff's claim has legal validity. Id. at 1093. Further, the Tenth Circuit has recognized “that a chilling effect on the exercise of a plaintiff's First Amendment rights may amount to a judicially cognizable injury in fact, as long as it arise[s] from an objectively justified fear of real consequences.” Id. at 1088. Additionally, “[i]n its interpretation of the ‘injury in fact’ requirement, the Supreme Court has repeatedly emphasized that a showing of noneconomic injury is sufficient to confer standing.” Am. Civil Liberties Union of Ga. v. Rabun County Chamber of Commerce, Inc., 678 F.2d 1379, 1384–85 (11th Cir.1982).

Having carefully reviewed the briefs on this issue, and having heard the evidence and arguments presented at the hearing, the Court finds that plaintiff has shown that he will suffer an injury in fact, specifically, an invasion of his First Amendment rights which is concrete, particularized and imminent. First, plaintiff claims that the moment the Oklahoma Constitution is amended, his First Amendment rights will be violated by Oklahoma's official condemnation of his religion/faith as reflected through the amendment's ban of the state courts' use or consideration of Sharia Law and that said official condemnation will result in a stigma attaching to his person, relegating him to an ineffectual position within the political community, and causing him injury.

A “psychological consequence” does not suffice as concrete harm where it is produced merely by “observation of conduct with which one disagrees.” But it does constitute concrete harm where the “psychological consequence” is produced by government condemnation of one's own religion or endorsement of another's in one's own community.... What distinguishes the cases is that in Valley Forge ³, the psychological consequence was merely disagreement with the government, but in the others, for which the Court identified a sufficiently concrete injury, the psychological consequence was exclusion or denigration on a religious basis within the political community.

Catholic League for Religious and Civil Rights v. City and County of San Francisco, 624 F.3d 1043, 1052 (9th Cir.2010).

In the case at bar, the Court finds that plaintiff's alleged condemnation injury is sufficiently concrete, particularized and imminent. Plaintiff has sufficiently set forth a personal stake in this action by alleging that he lives in Oklahoma, is a Muslim, that the amendment conveys an official government message of disapproval and hostility toward his...