By Mike Dorf
Last week, in Awad v. Ziriax, Federal District Judge Vicki Miles-LaGrange ruled that Oklahoma's ban on sharia law--approved by the state legislature and the voters in 2010--is unconstitutional on the ground that it is religious discrimination. That ruling seems plainly right. The Oklahoma courts might be called upon to apply sharia when either private law or the law of a sister state or foreign jurisdiction made applicable by the relevant choice-of-law principles incorporates it. But whereas State Question 755, as the referendum that enacted the sharia ban is known, would forbid the application of Muslim law, Oklahoma does not forbid looking to other bodies of religious law in like circumstances. Thus, for example, presumably SQ 755 would forbid an Oklahoma court from looking to the substance of sharia to determine whether there was compliance with a contract calling for the delivery of halal food, but there would be no prohibition on looking to Jewish law in the construction of a contract for the delivery of kosher food, or to Jain sacred texts to measure compliance with a contract for the delivery of Jain-suitable food. Etc.
SQ 755 does not merely forbid the application of sharia. Its operative text reads as follows: "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." I note in passing that in this choice of phrasing, Oklahomans appear to be implying that sharia is a legal precept of an other culture, but that only provides a further reason for thinking the sharia ban unconstitutional as discriminating against Islam and Muslims. I want to focus here and in a follow-up post on the prohibition on state courts considering international law.
While Judge Miles-LaGrange is on solid ground in invalidating the portion of SQ 755 that forbids state courts from applying sharia, her opinion strikes SQ 755 in its entirety, rejecting the state's suggestion that she sever the sharia ban from the portion of SQ 755 banning judicial consideration of "the legal precepts of other nations", i.e., "international law." In my follow-up post tomorrow, I'll consider whether the international law ban might itself be unconstitutional, and in doing so, I'll also reconsider whether the court ruled correctly that the sharia ban is invalid. For now, however I want to assume that the sharia ban is unconstitutional but that a ban on international law would be valid if enacted as a stand-alone provision. Was the judge right to say that the international law ban was non-severable from the sharia ban?
The opinion correctly treats severability as a question of state law. The court quotes the Oklahoma severability statute, which amounts to a presumption of severability, with two exceptions. An invalid provision will be treated as non-severable if either: (a) "the valid provisions or application of the act are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one"; or (b) "the remaining valid provisions or applications of the act standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent." (This language appears to be borrowed from the federal judge-made law of severability.)
If one were simply to apply the foregoing statutory language, one would conclude that the international law ban is severable from the sharia ban. The provisions don't interlock or depend on one another in any obvious way. This is not a case where, say, the two provisions at issue amount to a substantive conduct rule and a penalty provision. They are independent instructions to the Oklahoma courts.
So why does Judge Miles-LaGrange find otherwise? She cites a 2012 Oklahoma Supreme Court opinion that interprets the language quoted above to include an invisible third exception. That opinion states that the reviewing court must also determine whether "the Legislature would have enacted the remainder of the statute without the offending language." In the cited case the answer was yes, so severability was upheld, but Judge Miles-LaGrange finds that SQ 755 would not have been adopted without the sharia ban, which was the overwhelming focus of public debate. The international law ban was very much an afterthought.
I can't really find fault with the judge's application of Oklahoma severability principles, in light of the reference in the recent Oklahoma case law to subjective legislative intent. But I do find fault with the Oklahoma Supreme Court's interpretation of its severability statute. The statute does not say that courts should find non-severability based on speculation about whether the legislature would have passed particular provisions standing alone. It refers to whether the remaining provisions are "incomplete" and "incapable" of execution "in accordance with the legislative intent." That language in exception (b), it seems to me, calls for an inquiry with the same spirit as the inquiry required by exception (a): Reviewing courts should ask how the legislature intended the remaining provision to operate, not whether the legislature would have enacted it all. Given the logrolling one sees in legislatures, it's almost always going to be possible to say that some valid provision wouldn't have been enacted but for the inclusion in the overall legislative package of an invalid provision. Yet doing so would convert the presumption of severability into a presumption of non-severability.
In this regard, the Oklahoma Supreme Court's analysis strikes me as a wrong turn reminiscent of (and almost exactly contemporaneous with) the severability analysis offered by the four dissenting Justices in the Affordable Care Act Case. The dissenters there made a plausible case that the core of the ACA--private exchanges; the obligation to insure people regardless of pre-existing conditions--had to fall upon the invalidation of the individual mandate, in light of the fact that the mandate was enacted in order to avoid the adverse selection and moral hazards that would arise if the core provisions were not coupled with an insurance obligation. But the dissenters also said that wholly unrelated provisions of the ACA, provisions which could function perfectly as intended absent the mandate, also had to fall if the mandate were invalidated, simply because they were part of the same overall legislative compromise. To reach that further conclusion, the dissenters took the language in prior severability cases to mean that the proper inquiry includes a separate focus on whether Congress would have enacted the valid provision without the invalid one(s). I think the relevant prior language is susceptible of that interpretation but again, I think it is a wrong turn, for the sorts of reasons why textualists (including at least two of the Affordable Care Act dissenters) typically give for avoiding inquiries into subjective legislative intent in ordinary statutory construction. Indeed, it seems to me considerably more speculative to opine about what Congress would have done in some set of hypothetical circumstances than to opine about the reasons Congress did what it actually did.
Returning to the Awad case, it's not clear to me that Judge Miles-LaGrange erred regarding severability. As a federal judge applying state law principles, the Erie doctrine says she is bound by the state high court's interpretation of those principles, and the Oklahoma Supreme Court has stated that severability includes an inquiry into whether the legislature would have enacted the valid provision absent the invalid provision. Wrongheaded state law must be followed no less than sensible state law, unless it is unconstitutional or preempted. And that's a useful segue into tomorrow's post: I'll ask whether the provision I've been assuming to be valid--the international law ban--is independently unconstitutional, or merely stupid.