Awad v. Ziriax ( 2012 )


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  •                                                                    FILED
    United States Court of Appeals
    PUBLISH                     Tenth Circuit
    UNITED STATES COURT OF APPEALS          January 10, 2012
    Elisabeth A. Shumaker
    TENTH CIRCUIT                Clerk of Court
    MUNEER AWAD,
    Plaintiff - Appellee,
    v.
    PAUL ZIRIAX, Agency Head, Oklahoma
    State Board of Elections, THOMAS
    PRINCE, Chairman of the Board,
    Oklahoma State Board of Elections,
    STEVE CURRY, Board Member,
    Oklahoma State Board of Elections, and
    JIM ROTH, Board Member, Oklahoma
    State Board of Elections,
    Defendants - Appellants.                   No. 10-6273
    ----------------------------
    FOUNDATION OF MORAL LAW; THE
    ASSOCIATION OF THE BAR OF THE
    CITY OF NEW YORK; THE ISLAMIC
    LAW COMMITTEE OF THE
    AMERICAN BRANCH OF THE
    INTERNATIONAL LAW
    ASSOCIATION, THE AMERICAN
    JEWISH COMMITTEE, AMERICANS
    UNITED FOR SEPARATION OF
    CHURCH AND STATE, THE ANTI-
    DEFAMATION LEAGUE, THE
    BAPTIST JOINT COMMITTEE FOR
    RELIGIOUS LIBERTY, THE CENTER
    FOR ISLAMIC PLURALISM,
    INTERFAITH ALLIANCE, AND THE
    UNION FOR REFORM JUDAISM,
    Amici Curiae.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF OKLAHOMA
    (D.C. NO. 5:10-CV-01186-M)
    Patrick R. Wyrick, Solicitor General (Scott D. Boughton and Janis Wood Preslar,
    Assistant Attorneys General, on the briefs), Office of the Attorney General of Oklahoma,
    Oklahoma City, Oklahoma, appearing for Appellant.
    Micheal Salem, Salem Law Offices, Norman, Oklahoma (Joseph Thai, Norman,
    Oklahoma; Gadeir Abbas, Council of American Islamic Relations, Washington, DC; and
    Daniel Mach and Heather L. Weaver, American Civil Liberties Union Foundation,
    Washington, DC, with him on the briefs), appearing for Appellee.
    Roy S. Moore, Benjamin D. DuPre, and John Allen Eidsmoe, Montgomery, Alabama,
    filed an Amicus Curiae brief on behalf of the Foundation of Moral Law.
    Robert E. Michael, Robert E. Michael & Associates, PLLC, New York, New York, filed
    an Amicus Curiae brief on behalf of Association of the Bar of the City of New York and
    the Islamic Law Committee of the American Branch of the International Law
    Association.
    Craig C. Martin, Jenner & Block, LLP, Chicago, Illinois, and Joshua M. Segal, Jenner &
    Block, LLP, Washington, DC, filed an Amicus Curiae brief on behalf of American
    Jewish Committee; Americans United for Separation of Church and State; Anti-
    Defamation League; Baptist Joint Committee for Religious Liberty; Center for Islamic
    Pluralism; Interfaith Alliance; and Union for Reform Judaism.
    Before O’BRIEN, McKAY, and MATHESON, Circuit Judges.
    MATHESON, Circuit Judge.
    -2-
    On November 2, 2010, Oklahoma voters approved a proposed constitutional
    amendment that would prevent Oklahoma state courts from considering or using Sharia
    law. Before the amendment can become effective, the Oklahoma State Election Board
    must certify this election result. The Board members have asked us to review whether a
    federal district court abused its discretion when it granted a preliminary injunction to
    prevent them from certifying the result. We conclude there was no abuse of discretion.
    I. BACKGROUND
    A. Constitutional Amendments in Oklahoma
    We start with an explanation of the constitutional amendment process in
    Oklahoma and how its courts construe such amendments. The state constitution can be
    amended in several ways. See Okla. Const. art. 24. We focus on the process used in this
    case. Under article 24, section 1 of the Oklahoma Constitution,1 the state legislature may
    1
    This provision of the Oklahoma Constitution states:
    Any amendment or amendments to this Constitution may be
    proposed in either branch of the Legislature, and if the same
    shall be agreed to by a majority of all the members elected to
    each of the two (2) houses, such proposed amendment or
    amendments shall, with the yeas and nays thereon, be entered
    in their journals and referred by the Secretary of State to the
    people for their approval or rejection, at the next regular
    general election, except when the Legislature, by a two-thirds
    (2/3) vote of each house, shall order a special election for that
    purpose. If a majority of all the electors voting on any
    proposed amendment at such election shall vote in favor
    thereof, it shall thereby become a part of this Constitution.
    Continued . . .
    -3-
    pass a proposed constitutional amendment. The legislature also drafts a ballot title that
    explains the proposed amendment to voters. See Sw. Bell Tel. Co. v. Okla. State Bd. of
    Equal., 
    231 P.3d 638
    , 642 (Okla. 2009).
    The proposed amendment and ballot title are submitted to the Attorney General to
    ensure legal compliance. 
    Id.
     The Attorney General must specify any defects “and, if
    necessary, . . . prepare a preliminary ballot title which complies with the law.” 34 
    Okla. Stat. tit. 34, § 9
    (C) (2009).2 Once certified by the Attorney General, the Secretary of
    ______________________________________
    Cont.
    No proposal for the amendment or alteration of this
    Constitution which is submitted to the voters shall embrace
    more than one general subject and the voters shall vote
    separately for or against each proposal submitted; provided,
    however, that in the submission of proposals for the
    amendment of this Constitution by articles, which embrace
    one general subject, each proposed article shall be deemed a
    single proposal or proposition.
    Okla. Const. art. 24, § 1.
    2
    This law was amended slightly in 2011. We refer to the 2009 version of the law,
    which was in effect for the 2010 election. It stated in pertinent part:
    When a measure is proposed as a constitutional amendment
    by the Legislature or when the Legislature proposes a statute
    conditioned upon approval by the people:
    1. After final passage of a measure, the Secretary of State
    shall submit the proposed ballot title to the Attorney General
    for review as to legal correctness. Within five (5) business
    days, the Attorney General shall, in writing, notify the
    Secretary of State, the President Pro Tempore of the Senate
    and the Speaker of the House of Representatives whether or
    Continued . . .
    -4-
    State transmits the proposed measure and ballot title to the Election Board. Sw. Bell, 231
    P.3d at 642.
    A proposed constitutional amendment therefore “consist[s] of two substantive
    parts—the measure and the ballot title.” Id. (quotations omitted). When the Oklahoma
    Supreme Court interprets a state constitutional amendment’s meaning, it reads these parts
    together, regardless of whether there are “ambiguities or absurdities.” Id. It considers
    the amendment’s text and the ballot title together because “those who framed and
    adopted the amendment considered” both substantive parts. Id. “The understanding of
    ______________________________________
    Cont.
    not the proposed ballot title complies with applicable laws.
    The Attorney General shall state with specificity any and all
    defects found and, if necessary, within ten (10) business days
    of determining that the proposed ballot title is defective,
    prepare a preliminary ballot title which complies with the law
    and furnish a copy of such ballot title to the Secretary of
    State, the President Pro Tempore of the Senate and the
    Speaker of the House of Representatives. The Attorney
    General may consider any comments made by the President
    Pro Tempore of the Senate or the Speaker of the House of
    Representatives and shall file a final ballot title with the
    Secretary of State no sooner than ten (10) business days and
    no later than fifteen (15) business days after furnishing the
    preliminary ballot title; and
    2. After receipt of the measure and the official ballot title, as
    certified by the Attorney General, the Secretary of State shall
    within five (5) days transmit to the Secretary of the State
    Election Board an attested copy of the measure, including the
    official ballot title.
    34 
    Okla. Stat. tit. 34, § 9
    (C) (2009).
    -5-
    the Legislature as the framers and of the electorate as the adopters of the constitutional
    amendment is the best guide for determining an amendment’s meaning and scope, and
    such understanding is reflected in the language used in the measure and the ballot title.”
    
    Id.
    Oklahoma law provides that the Election Board must certify election results before
    a constitutional amendment can take effect. See Okla. Const. art. 5, § 3; 
    Okla. Stat. tit. 26, §§ 7-136
    , 12-118; Fent v. Henry, 
    257 P.3d 984
    , 986 (Okla. 2011). The State Election
    Board Rules provide that “[t]he State Election Board meets at 5 p.m. on Tuesday next
    following an election involving . . . state questions to certify the final election results.”
    § 230:35-3-91(c).
    B. The Proposed “Save Our State” Constitutional Amendment
    On May 25, 2010, the Oklahoma House of Representatives and Senate passed
    House Joint Resolution 1056 (“HJR 1056”). The resolution directed “the Secretary of
    State to refer to the people for their approval or rejection a proposed amendment to
    Section 1 of Article VII of the [Oklahoma] Constitution . . . [known as] the Save Our
    State Amendment.” Aplt. App. Vol. 1 at 167. The proposed amendment states:
    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
    -6-
    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.
    Id. at 168 (emphases added).
    HJR 1056 also provided that the ballot title should state:
    This measure amends the State Constitution. It would change
    a section that deals with courts of this state. It would make
    courts rely on federal and state laws when deciding cases. It
    would forbid courts from looking at international law or
    Sharia Law when deciding cases.
    SHALL THE PROPOSAL BE APPROVED?
    Id. at 169 (italic emphasis added).
    The Oklahoma Attorney General determined that the proposed ballot title did “not
    comply with applicable laws.” Id. at 175. It did “not adequately explain the effect of the
    proposition because it [did] not explain what either Sharia Law or international law is.”
    Id. The Attorney General prepared a revised ballot title, which states:
    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.
    -7-
    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 teachings of Mohammed.3
    SHALL THE PROPOSAL BE APPROVED?
    Id. at 178-79 (italic emphases added). The Attorney General refrained from giving any
    opinion “on the merits or constitutionality of the underlying proposed changes in the law,
    [or] on the ability of federal law to preempt the changes in the law.” Id. at 178.
    This revised ballot title was placed on the ballot as State Question 755 (“SQ 755”).
    On November 2, 2010, just over 70 percent of Oklahoma voters approved SQ 755.
    Without intervention, the proposed amendment would likely have been certified on
    November 9, 2010. See Okla. State Board Election Rule § 230:35-3-91(c).
    C. Procedural History
    On November 4, 2010, Muneer Awad sued the members of the Oklahoma Election
    Board (collectively the “Appellants”). He sought to prevent certification of the SQ 755
    election results. Mr. Awad, an American citizen residing in Oklahoma, is the executive
    director of the Oklahoma Chapter of the Council on American-Islamic Relations. As a
    Muslim, he adheres to the religious principles from the Koran and the teachings of
    Mohammed.
    3
    Various spellings have been used for “Sharia,” “Koran,” and “Mohammed.” We
    use the spellings adopted in the ballot title to avoid confusion.
    -8-
    Mr. Awad alleges that the Save Our State Amendment violates his rights under
    both the Establishment and Free Exercise Clauses of the First Amendment of the United
    States Constitution. He objects to the amendment’s singling out his religion for negative
    treatment. He claims the amendment’s implementation would cause multiple adverse
    consequences, such as stigmatizing him and others who practice the Muslim faith,
    inhibiting the practice of Islam, disabling a court from probating his last will and
    testament (which contains references to Sharia law), limiting the relief Muslims can
    obtain from Oklahoma state courts, and fostering excessive entanglement between the
    government and his religion.
    The district court granted a temporary restraining order on November 9, 2010. On
    November 22, 2010, the court conducted an evidentiary hearing regarding Mr. Awad’s
    request for a preliminary injunction. It granted the preliminary injunction one week later.
    See Awad v. Ziriax, 
    754 F. Supp. 2d 1298
    , 1308 (W.D. Okla. 2010). Appellants filed a
    timely notice of appeal on December 1, 2010.
    Oral argument occurred before this panel on September 12, 2011. Following oral
    argument, the parties were asked to file simultaneous supplemental briefs to answer the
    following questions:
    1. Should the test set forth in Larson v. Valente, 
    456 U.S. 228
     (1982), govern the Establishment Clause issue in this
    case? See also Hernandez v. Commissioner, 
    490 U.S. 680
    (1989); Colorado Christian University v. Weaver, 
    534 F.3d 1245
     (10th Cir. 2008). Why or why not?
    -9-
    2. How should the Establishment Clause issue be analyzed
    and decided under the Larson test, assuming it does
    apply?
    The parties filed supplemental briefs on November 2, 2011.
    We have jurisdiction under 
    28 U.S.C. § 1292
    (a)(1), which authorizes appellate
    review of a district court’s interlocutory order granting a preliminary injunction.
    II. DISCUSSION
    Appellants challenge the preliminary injunction. First, they argue that Mr. Awad’s
    claims are not justiciable. Second, they argue that, even if Mr. Awad’s Establishment or
    Free Exercise Clause claim is justiciable, each claim fails to meet preliminary injunction
    requirements.
    We hold that Mr. Awad’s Establishment Clause claim is justiciable and that the
    district court did not abuse its discretion in granting the preliminary injunction based on
    that claim. Because Mr. Awad’s Establishment Clause claim provides sufficient grounds
    to uphold the preliminary injunction, we affirm without reaching Mr. Awad’s Free
    Exercise claim.
    A. Justiciability
    Appellants argue that Mr. Awad lacks standing and that his claims are not ripe for
    review. They have not distinguished between the justiciability of his Establishment and
    Free Exercise claims. Because we do not reach the Free Exercise claim, we address only
    the justiciability of Mr. Awad’s Establishment Clause claim. “We review questions of
    -10-
    justiciability de novo.” Kansas Judicial Review v. Stout, 
    519 F.3d 1107
    , 1114 (10th Cir.
    2008).
    1. Mr. Awad Has Standing to Bring His Establishment Clause Claim
    To establish Article III standing, a plaintiff must establish (1) that he or she has
    “suffered an injury in fact;” (2) that the injury is “‘fairly traceable to the challenged
    action of the defendant;” and, (3) that it is “likely” that “the injury will be redressed by a
    favorable decision.” Ariz. Christian Sch. Tuition Org. v. Winn, 
    131 S. Ct. 1436
    , 1442
    (2011) (quotations omitted); see also Jordan v. Sosa, 
    654 F.3d 1012
    , 1019 (10th Cir.
    2011). “At bottom, the gist of the question of standing is whether petitioners have such a
    personal stake in the outcome of the controversy as to assure that concrete adverseness
    which sharpens the presentation of issues upon which the court so largely depends for
    illumination.” Massachusetts v. E.P.A., 
    549 U.S. 497
    , 517 (2007) (quotations omitted).
    As in all standing analyses, we must begin by determining whether Mr. Awad has
    alleged an injury in fact. To satisfy this requirement, plaintiffs must allege they “have
    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.” Winn,
    
    131 S. Ct. at 1442
     (quotations omitted).
    Appellants argue that Mr. Awad does not have standing because he has not
    -11-
    suffered an actual or imminent injury.4 They contend that because the amendment has
    not taken effect or been interpreted by any Oklahoma court, Mr. Awad’s alleged injuries
    are necessarily speculative. They further contend that Mr. Awad’s assertion that he will
    suffer official condemnation of his religion is “personal opinion.” Aplt. Br. at 14.
    Mr. Awad claims that the amendment threatens to injure him in several ways, such
    as condemning his Muslim faith, inhibiting the practice of Islam, disabling a court from
    probating his will (which contains references to Sharia law), and limiting the relief he and
    other Muslims can obtain from Oklahoma state courts.
    Determining whether a plaintiff has alleged a sufficient injury in fact is often not
    difficult. But “the concept of injury for standing purposes is particularly elusive in
    Establishment Clause cases.” Doe v. Tangipahoa Parish Sch. Bd., 
    494 F.3d 494
    , 504-05
    (5th Cir. 2007) (quotations omitted); see also Suhre v. Haywood Cnty., 
    131 F.3d 1083
    ,
    1085 (4th Cir. 1997) (same quote); Robinson v. City of Edmond, 
    68 F.3d 1226
    , 1230 n.6
    (10th Cir. 1995) (“Standing is of course always necessary in an Establishment Clause
    case, and it is sometimes a difficult issue.”).
    The Supreme Court discussed this issue in Valley Forge Christian College v.
    Americans United for Separation of Church and State, 
    454 U.S. 464
     (1982). In Valley
    Forge, a group of plaintiffs dedicated to the separation of church and state attempted to
    challenge the transfer of surplus federal property to an educational institution affiliated
    4
    Appellants have not challenged the causation or redressability elements of Mr.
    Awad’s standing.
    -12-
    with a particular religious order. The plaintiffs learned about the conveyance through a
    press release. None of them lived in or near Pennsylvania, the site of the property at
    issue. The Court held that the plaintiffs did not have standing because they failed to
    identify a personal injury resulting from the allegedly unconstitutional transfer. The
    Court noted that it was not enough for litigants to claim a constitutional violation.
    Rather, plaintiffs must “identify a[] personal injury suffered by them as a consequence of
    the alleged constitutional error, other than the psychological consequence presumably
    produced by observation of conduct with which one disagrees.” 
    Id. at 485
     (emphasis in
    original). The Court noted that it was “not retreat[ing] from [its] earlier holdings that
    standing may be predicated on noneconomic injury.” 
    Id. at 486
    . 5
    Since Valley Forge, the Supreme Court has not provided clear and explicit
    guidance on the difference between psychological consequence from disagreement with
    government conduct and noneconomic injury that is sufficient to confer standing.6 Our
    5
    This is consistent with our longstanding view that in Establishment Clause cases,
    “standing is clearly conferred by non-economic religious values.” Anderson v. Salt Lake
    City Corp., 
    475 F.2d 29
    , 31 (10th Cir. 1973) superseded on other grounds by Van Orden
    v. Perry, 
    545 U.S. 677
     (2005); McCreary Cnty. v. Am. Civil Liberties Union of Kentucky,
    
    545 U.S. 844
     (2005). See Soc’y of Separationists v. Pleasant Grove City, 
    416 F.3d 1239
    ,
    1241 n.1 (10th Cir. 2005).
    6
    We have some direction, however, from the numerous cases in which the Court
    has addressed the merits of Establishment Clause claims alleging exposure to unwelcome
    government-sponsored religious messages.
    Summarized in recent Seventh Circuit and Ninth Circuit opinions, these cases
    involved “a crèche in a county courthouse, a crèche in a public park, the Ten
    Commandments displayed on the grounds of a state capitol, the Ten Commandments
    Continued . . .
    -13-
    court has addressed standing in the Establishment Clause context in several cases. For
    example, in O’Connor v. Washburn Univ., 
    416 F.3d 1216
     (10th Cir. 2005), plaintiffs, a
    college faculty member and a student, claimed their unwelcome exposure to a statue on
    their campus that was allegedly hostile to their Catholic religion violated the
    Establishment Clause. We held the plaintiffs had standing. We noted that “[i]n the
    context of alleged violations of the Establishment Clause, this court has held that standing
    is clearly conferred by non-economic religious values.” 
    Id. at 1222
     (quotations omitted).
    We explained, however, that “plaintiffs alleging non-economic injury must be ‘directly
    affected by the laws and practices against which their complaints are directed.’” 
    Id. at 1222-23
     (quoting Valley Forge, 
    454 U.S. at
    486 n.22). We then concluded that
    “[a]llegations of personal contact with a state-sponsored [religious] image suffice to
    demonstrate this kind of direct injury.” Id. at 1223.
    ______________________________________
    Cont.
    displayed at a courthouse, a cross displayed in a national park, prayer in a football game,
    school prayer, a moment of silence at school, Bible reading at a public school, and a
    religious invocation at graduation.” Freedom from Religion Found., Inc. v. Obama, 
    641 F.3d 803
    , 812 (7th Cir. 2011) (Williams, J., concurring); Catholic League for Religious
    and Civil Rights v. City and Cnty. of San Francisco, 
    624 F.3d 1043
    , 1049-50 (9th Cir.
    2010) (en banc), cert. denied, 
    131 S. Ct. 2875
     (2011).
    The Supreme Court recently cautioned that “[w]hen a potential jurisdictional
    defect is neither noted nor discussed in a federal decision, the decision does not stand for
    the proposition that no defect existed.” Arizona Christian Sch. Tuition Org. v. Winn, —
    U.S. —, 
    131 S. Ct. 1436
    , 1448 (2011). Nonetheless, the volume and content of Supreme
    Court merits decisions in Establishment Clause religious display and expression cases
    involving noneconomic injury is instructive.
    -14-
    Our most recent Establishment Clause case to address standing was American
    Atheists, Inc. v. Davenport, 
    637 F.3d 1095
     (10th Cir. 2010). In that case, plaintiffs
    challenged the placement of crosses on government property in remembrance of fallen
    highway patrol troopers. We concluded that the plaintiffs suffered an Establishment
    Clause standing injury because they encountered an unwelcome government-sponsored
    religious symbol. We stated: “[A]llegations of personal contact with a state-sponsored
    image suffice to demonstrate . . . direct injury” for standing purposes in Establishment
    Clause cases. Id. at 1113 (quotations omitted).
    As in many Establishment Clause cases, the American Atheists plaintiffs did not
    suffer physical or economic injury. Their alleged injury was “personal and unwelcome
    contact with the crosses.” Id. (quotations omitted). We said “these allegations establish
    standing.” Id. This basis for standing was the same as in other cases in which plaintiffs
    have challenged government-sponsored religious symbols. See, e.g., Foremaster v. City
    of St. George, 
    882 F.2d 1485
    , 1490-91 (10th Cir. 1989).
    Although standing remains difficult to define precisely in the Establishment
    Clause context, several key principles can be distilled from the above-referenced cases.
    First, “[i]n the context of alleged violations of the Establishment Clause, . . . standing is
    clearly conferred by non-economic religious values.” O’Connor, 416 F.3d at 1222
    (quotations omitted). Second, it is not enough for litigants to claim a constitutional
    violation. They must also “identify a[] personal injury suffered by them as a
    consequence of the alleged constitutional error, other than the psychological consequence
    -15-
    presumably produced by observation of conduct with which one disagrees.” Valley
    Forge, 
    454 U.S. at 485
     (emphasis in original). Finally, alleging only “personal and
    unwelcome contact” with government-sponsored religious symbols is sufficient to
    establish standing. American Atheists, 637 F.3d at 1113 (quotations omitted). 7
    As in other Establishment Clause cases, Mr. Awad alleges that the amendment
    threatens him with noneconomic injuries. In some respects, Mr. Awad’s alleged injuries
    are similar to those found sufficient to confer standing in our religious symbol
    Establishment Clause cases. Like the plaintiffs who challenged the highway crosses in
    American Atheists, Mr. Awad suffers a form of “personal and unwelcome contact” with
    an amendment to the Oklahoma Constitution that would target his religion for disfavored
    treatment. As a Muslim and citizen of Oklahoma, Mr. Awad is “directly affected by the
    law[] . . . against which [his] complaints are directed.” See Valley Forge, 
    454 U.S. at
    487
    n.22 (quoting Abington Sch. Dist. v. Schempp, 
    374 U.S. 203
    , 224 n.9 (1963)). As further
    spelled out below, that is enough to confer standing. See Schempp, 
    374 U.S. at
    224 n.9.
    Mr. Awad alleges injuries beyond the “personal and unwelcome contact” that
    suffices for standing with religious symbols. He alleges that the amendment condemns
    his religious faith and exposes him to disfavored treatment. Such condemnation was not
    7
    One of the American Atheists plaintiffs alleged that he was forced to alter his
    travel route to avoid contact with the crosses. We said that such an allegation was not
    necessary for standing but further supported his standing. 637 F.3d at 1113 (quoting
    O’Connor v. Washburn Univ., 
    416 F.3d 1216
    , 1223 (10thCir. 2005)).
    -16-
    present in the religious symbol cases. The plaintiffs in those cases certainly may have
    felt that a religious display conflicted with their religious beliefs or non-belief, but those
    symbols did not expressly target and condemn a specific religion. Mr. Awad alleges that
    the amendment condemns his religion and prohibits him from relying on his religion’s
    legal precepts in Oklahoma courts, while not prohibiting people of all other faiths to rely
    on the legal precepts of their religions.8
    Mr. Awad’s alleged injury goes significantly beyond a “psychological
    consequence” from disagreement with observed government conduct, see Valley Forge,
    
    454 U.S. at 485
    , “hurt feelings” from a presidential proclamation requesting citizens to
    pray, Freedom from Religion Found. Inc. v. Obama, 
    641 F.3d 803
    , 807 (7th Cir. 2011),
    or “a person’s deep and genuine offense to a defendant’s actions,” Catholic League for
    8
    In a case that did not involve the Establishment Clause, Allen v. Wright, 
    468 U.S. 737
     (1984), plaintiffs, parents of black school children, sued the Internal Revenue Service
    for failure to enforce a law to deny tax-exempt status to private schools that discriminated
    on the basis of race. The Court denied that the plaintiffs’ claim of a stigmatizing injury
    suffered by all members of a racial group was sufficient for standing because the injury
    was too generalized and did not allege personal denial of equal treatment:
    There can be no doubt that this sort of noneconomic injury is
    one of the most serious consequences of discriminatory
    government action and is sufficient in some circumstances to
    support standing. Our cases make clear, however, that such
    injury accords a basis for standing only to those persons who
    are personally denied equal treatment by the challenged
    discriminatory conduct.
    
    Id. at 755
     (quotations and citation omitted) (emphasis added). Here, Mr. Awad’s injury is
    personal and concrete.
    -17-
    Religious and Civil Rights v. City and Cnty. of San Francisco, 
    624 F.3d 1043
    , 1062 (9th
    Cir. 2010) (en banc) (Graber, J., dissenting), cert. denied, 
    131 S. Ct. 2875
     (2011). The
    harm alleged by Mr. Awad stems from a constitutional directive of exclusion and
    disfavored treatment of a particular religious legal tradition.
    The district court seemed to rely in part on the Ninth Circuit’s decision in Catholic
    League to confer standing on Mr. Awad. See Awad, 
    754 F. Supp. 2d at 1303
    . We do not
    rely on Catholic League, although our standing holding is consistent with that case, and
    the contrast between the two cases illustrates the strength of Mr. Awad’s standing. In
    Catholic League, the court upheld plaintiffs’ standing to challenge a non-binding San
    Francisco Board of Supervisors resolution denouncing a Catholic Church position on
    homosexual adoptions. 624 F.3d at 1046-53. In this case, the Oklahoma Legislature did
    not simply adopt a non-binding resolution opposing the consideration or use of Sharia
    law in state courts, it proposed and the electorate agreed to enshrine such a prohibition in
    the state’s constitution. Mr. Awad is facing the consequences of a statewide election
    approving a constitutional measure that would disfavor his religion relative to others.
    The non-binding city resolution in Catholic League conveyed “a government message,”
    624 F.3d at 1048. The Oklahoma amendment conveys more than a message; it would
    impose a constitutional command.
    We conclude that Mr. Awad’s allegation—that the proposed state amendment
    expressly condemns his religion and exposes him and other Muslims in Oklahoma to
    disfavored treatment—suffices to establish the kind of direct injury-in-fact necessary to
    -18-
    create Establishment Clause standing.
    Because the amendment would likely have been certified a week after it was
    passed, we further conclude that the injury alleged by Mr. Awad is imminent and not
    conjectural or hypothetical. See Okla. State Election Board Rule § 230:35-3-91(c)
    (noting that the State Election Board meets on the Tuesday following an election to
    certify final election results on state questions); see also DaimlerChrysler Corp. v. Cuno,
    
    547 U.S. 332
    , 345 (2006) (defining “imminent” injury as one that is “certainly
    impending” (quotations omitted)).
    Additionally, we agree with the district court that “plaintiff has shown that his
    alleged injuries are fairly traceable to the challenged action of defendants and are likely
    to be redressed by a favorable decision.” Awad, 
    754 F. Supp. 2d at 1304
    . Mr. Awad
    therefore has standing to bring his Establishment Clause claim.9
    2. The Establishment Clause Claim Is Ripe For Review
    We also conclude that Mr. Awad’s Establishment Clause claim is ripe for review.
    The ripeness doctrine aims to prevent courts “from entangling themselves in abstract
    disagreements” by avoiding “premature adjudication.” Abbott Labs. v. Gardner, 
    387 U.S. 136
    , 148 (1967), overruled on other grounds by Califano v. Sanders, 
    430 U.S. 99
    ,
    105 (1977). “Ripeness reflects constitutional considerations that implicate Article III
    9
    Appellants have not challenged Mr. Awad’s prudential standing, nor do we
    discern any issues on that ground. See Elk Grove Unified Sch. Dist. v. Newdow, 
    542 U.S. 1
    , 11-12 (2004).
    -19-
    limitations on judicial power, as well as prudential reasons for refusing to exercise
    jurisdiction.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 
    130 S. Ct. 1758
    , 1767 n.2
    (2010) (quotations omitted). Our ripeness analysis focuses on “whether the harm
    asserted has matured sufficiently to warrant judicial intervention.” Stout, 
    519 F.3d at 1116
     (quotations omitted).
    “‘[I]f a threatened injury is sufficiently “imminent” to establish standing, the
    constitutional requirements of the ripeness doctrine will necessarily be satisfied.’” Am.
    Civil Liberties Union v. Johnson, 
    194 F.3d 1149
    , 1154 (10th Cir. 1999) (quoting Nat’l
    Treasury Emp. Union v. United States, 
    101 F.3d 1423
    , 1428 (D.C. Cir. 1996)). Thus, for
    the reasons discussed in our injury-in-fact standing analysis, we hold that Mr. Awad
    meets the constitutional ripeness requirement.
    Appellants challenge whether Mr. Awad’s claims are prudentially ripe. We
    analyze prudential ripeness by “examining both the fitness of the issues raised . . . for
    judicial review and the hardship to the parties from withholding review.” United States v.
    Vaquera-Juanes, 
    638 F.3d 734
    , 736-37 (10th Cir. 2011), cert. denied, 
    132 S. Ct. 315
    (2011).
    First, on fitness, we “focus[] on whether determination of the merits turns upon
    strictly legal issues or requires facts that may not yet be sufficiently developed.” Stout,
    
    519 F.3d at 1118
    . We must decide if “prudential limitations . . . require us to stay our
    hand until the issues in the case have become more fully developed.” Initiative and
    Referendum Institute v. Walker, 
    450 F.3d 1082
    , 1098 (10th Cir. 2006).
    -20-
    Mr. Awad challenges the facial validity of the proposed amendment under the
    First Amendment. Such claims are generally considered to be strictly legal questions that
    do “not involve the application of [the law] in a specific factual setting.” Stout, 
    519 F.3d at 1118
     (quotations omitted); see also ACORN v. City of Tulsa, Okla., 
    835 F.2d 735
    , 740
    (10th Cir. 1987) (“In determining the facial validity of a statute or ordinance the court
    does not consider any specific type of conduct. Rather, the facial validity of a statute is
    decided by reference to all of the conduct that is proscribed by the statute.”). The
    constitutional validity of the proposed amendment in this case does not require us to
    evaluate specific factual context. Further factual development is therefore unnecessary to
    our resolution of the preliminary injunction factors. This matter is fit for judicial review.
    Second, as for hardship from withholding judicial review, we ask “whether the
    challenged action creates a direct and immediate dilemma for the parties.” New
    Mexicans for Bill Richardson v. Gonzales, 
    64 F.3d 1495
    , 1499 (10th Cir. 1995)
    (quotations omitted). Appellants plainly suffer no hardship from withholding review.
    But Mr. Awad has shown he faces an immediate and concrete condemnation injury if we
    withhold review and the measure is certified. Mr. Awad thus faces a “direct and
    immediate dilemma” and has established the necessary hardship to overcome prudential
    ripeness concerns. 
    Id.
    We conclude this matter is ripe for review. Because Mr. Awad also has standing,
    we hold that his Establishment Clause claim is justiciable.
    B. Preliminary Injunction
    -21-
    Having concluded that Mr. Awad’s claim is justiciable, we now address whether
    the district court abused its discretion by granting the preliminary injunction. See
    Heideman v. S. Salt Lake City, 
    348 F.3d 1182
    , 1188 (10th Cir. 2003). “An abuse of
    discretion occurs only when the trial court bases its decision on an erroneous conclusion
    of law or where there is no rational basis in the evidence for the ruling.” Wilderness
    Workshop v. United States Bureau of Land Mgmt., 
    531 F.3d 1220
    , 1223-24 (10th Cir.
    2008) (quotations omitted).
    To obtain a preliminary injunction, Mr. Awad must show that four factors weigh
    in his favor: “(1) [he] is substantially likely to succeed on the merits; (2) [he] will suffer
    irreparable injury if the injunction is denied; (3) [his] threatened injury outweighs the
    injury the opposing party will suffer under the injunction; and (4) the injunction would
    not be adverse to the public interest.” Beltronics USA, Inc. v. Midwest Inventory Distrib.,
    LLC, 
    562 F.3d 1067
    , 1070 (10th Cir. 2009); see also Fed. R. Civ. P. 65; Winter v.
    Natural Res. Def. Council, 
    555 U.S. 7
    , 20 (2008).
    Appellants argue that Mr. Awad is seeking a disfavored type of injunction and that
    he should therefore be subject to a more strenuous preliminary injunction test. There are
    three types of disfavored injunctions:
    (1) preliminary injunctions that alter the status quo; (2)
    mandatory preliminary injunctions; and (3) preliminary
    injunctions that afford the movant all the relief that it could
    recover at the conclusion of a full trial on the merits. When a
    preliminary injunction falls into one of these categories, it
    must be more closely scrutinized to assure that the exigencies
    of the case support the granting of a remedy that is
    -22-
    extraordinary even in the normal course. A district court may
    not grant a preliminary injunction unless the moving party
    makes a strong showing both with regard to the likelihood of
    success on the merits and with regard to the balance of harms.
    Summum v. Pleasant Grove City, 
    483 F.3d 1044
    , 1048-49 (10th Cir. 2007), rev’d on
    other grounds, 
    555 U.S. 460
     (2009) (quotations omitted); see also O Centro Espirita
    Beneficiente Uniao Do Vegetal v. Ashcroft, 
    389 F.3d 973
    , 975-76 (10th Cir. 2004) (en
    banc), aff’d and remanded by, Gonzales v. O Centro Espirita Beneficente Uniao do
    Vegetal, 
    546 U.S. 418
     (2006).
    The district court applied the heightened standard because it found the preliminary
    injunction altered the status quo and afforded all the relief Mr. Awad could recover after
    a merits trial. See Awad, 
    754 F. Supp. 2d at 1305
    . Although Mr. Awad argues on appeal
    that the district court should have applied the less demanding traditional standard, we
    need not decide that issue because we affirm that Mr. Awad meets the heightened
    standard. The following therefore reviews the preliminary injunction under that standard,
    which calls for Mr. Awad to make “a strong showing both with regard to the likelihood
    of success on the merits and with regard to the balance of harms.” Summum, 
    483 F.3d at 1049
    . The heightened standard does not affect the analysis of the other two preliminary
    injunction factors: irreparable injury and public interest. See 
    id.
     Mr. Awad need only
    show that those two factors weigh in his favor.
    We examine each preliminary injunction factor.
    1. A Strong Showing of Likelihood of Success on the Merits
    -23-
    The first factor is likelihood of success on the merits. Under the heightened
    standard, Mr. Awad must make a strong showing that he is likely to succeed on his
    Establishment Clause claim. We first determine the proper Establishment Clause test and
    then apply it to the facts to see if Mr. Awad has satisfied this burden.
    a. Determining the Proper Legal Test
    The First Amendment provides in part that “Congress shall make no law
    respecting an establishment of religion.” U.S. Const. amend. I. Like other First
    Amendment provisions, the Establishment Clause is applicable to the states through the
    Due Process Clause of the Fourteenth Amendment. See Cantwell v. Connecticut, 
    310 U.S. 296
    , 303 (1940); Green v. Haskell Cnty. Bd. of Com’rs, 
    563 F.3d 784
    , 796 (10th Cir.
    2009).
    To decide whether the district court abused its discretion in holding that Mr. Awad
    is likely to prevail on the merits, we must first determine the proper Establishment Clause
    test. There are two possibilities—the Lemon or Larson test.10 See Larson v. Valente, 456
    10
    “Although the Supreme Court is sharply divided” on whether Lemon remains
    valid law, this court “has recently affirmed that the touchstone for Establishment Clause
    analysis remains the tripartite test set out in Lemon.” Am. Atheists, Inc. v. Davenport,
    
    637 F.3d 1095
    , 1117 (10th Cir. 2010), cert. denied, Utah Highway Patrol Ass’n v. Am.
    Atheists Inc., 
    132 S. Ct. 12
     (2011); see also Green, 568 F.3d at 798 n.8. An important
    distinction between American Atheists and this case is that the former involved religious
    symbols and not a law discriminating among religions. See Am. Atheists, 637 F.3d at
    1112.
    To withstand an Establishment Clause challenge under the Lemon test, a provision
    must (1) “have a secular legislative purpose;” (2) have a “primary effect” that “neither
    Continued . . .
    -24-
    U.S. 228, 255 (1982); Lemon v. Kurtzman, 
    403 U.S. 602
    , 612-13 (1971). The Supreme
    Court instructs that Lemon applies to “laws affording uniform benefit to all religions, and
    not to provisions . . . that discriminate among religions.” Larson, 
    456 U.S. at 252
    (emphases in original).
    The Larson test provides that if a law discriminates among religions, it can survive
    only if it is “closely fitted to the furtherance of any compelling interest asserted.” 
    Id. at 255
    . 11 Strict scrutiny is required when laws discriminate among religions because
    “[n]eutral treatment of religions [is] ‘the clearest command of the Establishment
    Clause.’” Colorado Christian Univ. v. Weaver, 
    534 F.3d 1245
    , 1266 (10th Cir. 2008)
    (quoting Larson, 
    456 U.S. at 244
    )). “The First Amendment mandates governmental
    neutrality between religion and religion . . . . The State may not adopt programs or
    practices . . . which aid or oppose any religion . . . . This prohibition is absolute.”
    Larson, 
    456 U.S. at 246
     (quotations omitted).
    Appellants argue that Larson is either no longer valid or does not fit the facts of
    ______________________________________
    Cont.
    advances or inhibits religion;” and (3) “not foster an excessive government entanglement
    with religion.” Lemon, 
    403 U.S. at 612-13
     (quotations omitted).
    11
    In Larson, the court found the appellants failed to demonstrate that the provision
    at issue was closely fitted to further a compelling governmental interest. Larson, 
    456 U.S. at 251
    . It then considered the provision under Lemon, but asserted that step was
    unnecessary: “Although application of the Lemon tests is not necessary to the disposition
    of the case before us, those tests do reflect the same concerns that warranted the
    application of strict scrutiny.” 
    Id. at 252
    .
    -25-
    this case. We disagree on both counts. Appellants surmise that Larson is no longer good
    law in part because it has been used infrequently. But the Supreme Court has never
    overturned it. Moreover, Larson’s rare use likely reflects that legislatures seldom pass
    laws that make “explicit and deliberate distinctions between different religious
    organizations” as contemplated in Larson. 
    Id.
     at 247 n.23; see also Church of the Lukumi
    Babalu Aye, Inc. v. City of Hialeah, 
    508 U.S. 520
    , 523 (1993) (“The principle that
    government may not enact laws that suppress religious belief or practice is so well
    understood that few violations are recorded in our opinions.”).
    The Supreme Court and various circuits, including this one, have referenced or
    applied the Larson test. See, e.g., Hernandez v. Comm’r of Internal Revenue, 
    490 U.S. 680
    , 695 (1989) (Larson teaches that . . . the initial inquiry is whether the law facially
    discriminates among religions. If no such facial preference exists, we proceed to apply
    the . . . [Lemon test].”); Corporation of the Presiding Bishop of the Church of Jesus
    Christ of Latter-day Saints v. Amos, 
    483 U.S. 327
    , 339 (1987) (“But Larson indicates that
    laws discriminating among religions are subject to strict scrutiny.” (emphasis in
    original)); Lynch v. Donnelly, 
    465 U.S. 668
    , 687 n.13 (1984); Colorado Christian Univ.,
    
    534 F.3d at 1266
    ; Sklar v. Comm’r of Internal Revenue, 
    549 F.3d 1252
    , 1257 n.3, 1265-
    67 (9th Cir. 2008); Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 
    212 F.3d 1084
    , 1090 (8th Cir. 2000); Koenick v. Felton, 
    190 F.3d 259
    , 264 (4th Cir. 1999); Wilson
    -26-
    v. N.L.R.B., 
    920 F.2d 1282
    , 1286-87 (6th Cir. 1990).12 In Colorado Christian University,
    we stated: “statutes involving discrimination on the basis of religion, including
    interdenominational discrimination, are subject to heightened scrutiny . . . under the . . .
    Establishment Clause.” 
    534 F.3d at
    1266 (citing Larson, 
    456 U.S. at 246
    ).13
    Because the district court applied Lemon without determining if Larson should
    apply, see Awad, 
    754 F. Supp. 2d at 1305-06
    , we asked for supplemental briefing on this
    issue and on the appropriate outcome under Larson. Having considered the parties’
    arguments and the record, we conclude that Larson is the proper test for determining if
    the proposed amendment violates the Establishment Clause.14
    12
    The Larson test can be seen as “the Establishment Clause counterpart to the rule
    against content discrimination . . . in free speech law . . . [both requiring] strict scrutiny.”
    John H. Garvey, The Architecture of the Establishment Clause, 
    43 Wayne L. Rev. 1451
    ,
    1463 (1997). The Larson test can also be seen as an Establishment Clause counterpart to
    the Equal Protection Clause in that both “provide[] constitutional protection against
    religious discrimination.” Fred Mark Gedicks, The Permissible Scope of Legal
    Limitations on the Freedom of Religion or Belief in the United States, 19 Emory Int’l L.
    Rev. 1187, 1189-90 (2005); see also, e.g., Niemotko v. Maryland, 
    340 U.S. 268
    , 272
    (1951) (“The right to equal protection of the laws, in the exercise of those freedoms of
    speech and religion protected by the First and Fourteenth Amendments, has a firmer
    foundation than the whims of personal opinions of a local governing body.”).
    13
    In Colorado Christian University, we acknowledged uncertainty as to what level
    of scrutiny should apply when discriminatory funding is at issue, see id. at 1267, but the
    proposed Save Our State Amendment is not about funding.
    14
    Although the district court applied Lemon instead of Larson, we need not
    remand when, as here, the record is sufficiently developed to allow us to determine
    whether Mr. Awad has met his burden under the four preliminary injunction factors. See
    Summum, 
    483 F.3d at 1049
     (“[T]he District Court abused its discretion by analyzing
    Summum’s First Amendment claim under the incorrect legal standard. But rather than
    Continued . . .
    -27-
    The Larson test applies because the proposed amendment discriminates among
    religions. This case presents even stronger “explicit and deliberate distinctions” among
    religions than the provision that warranted strict scrutiny in Larson. See Larson, 
    456 U.S. at
    247 n.23. Larson involved a Minnesota statute that imposed certain registration
    and reporting requirements upon only those religious organizations that solicited more
    than 50 percent of their funds from nonmembers. 
    Id. at 230
    . Unlike the provision in
    Larson, the Oklahoma amendment specifically names the target of its discrimination.
    The only religious law mentioned in the amendment is Sharia law, which is defined in SQ
    755 in religious terms: “Sharia Law is Islamic law. It is based on two principal sources,
    the Koran and the teachings of Mohammed.” Aplt. App. Vol. 1 at 179.
    Appellants argue there is no discrimination because the amendment bans all
    religious laws from Oklahoma courts and Sharia law is named only as an example. But
    that argument conflicts with the amendment’s plain language, which mentions Sharia law
    in two places.
    First, the amendment instructs Oklahoma courts to “uphold and adhere to . . . if
    ______________________________________
    Cont.
    remanding to the District Court for the appropriate analysis, we find the record
    sufficiently developed to allow us to determine whether Summum has met its burden
    under the four factors necessary to prevail on its motion.” (citing Schrier v. Univ. of
    Colorado, 
    427 F.3d 1253
    , 1261 (10th Cir. 2005); Utah Licensed Beverage Ass’n v.
    Leavitt, 
    256 F.3d 1061
    , 1075-76 (10th Cir. 2001))). “[W]e are free to affirm a district
    court decision on any grounds for which there is a record sufficient to permit conclusions
    of law, even grounds not relied upon by the district court.” Herman v. Pollock, 
    586 F.3d 1254
    , 1259 (10th Cir. 2009) (quotations omitted).
    -28-
    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.” Id. at 168 (emphasis added).
    This language prohibits Oklahoma courts from upholding and adhering to laws of other
    states that include Sharia law but does not prohibit Oklahoma courts from upholding and
    adhering to laws of other states that include the laws of any other religion. On this basis
    alone, application of Larson strict scrutiny is warranted.
    Second, the amendment states that Oklahoma “courts shall not look to the legal
    precepts of other nations or cultures. Specifically, the courts shall not consider
    international law or Sharia Law.” Id. (emphasis added). Appellants argue that the word
    “cultures” should be read to include religious groups, and that the amendment therefore
    “plainly prohibits the consideration of legal precepts associated with all religious
    denominations.” Aplt. Supp. Br. at 7. We disagree.
    The amendment bans only one form of religious law—Sharia law. Even if we
    accept Appellants’ argument that we should interpret “cultures” to include “religions,”
    the text does not ban all religious laws. The word “other” in the amendment modifies
    both “nations” and “cultures.” Therefore, if we substituted the word “religions” for
    “cultures,” the amendment would prohibit Oklahoma courts from “look[ing] to the legal
    precepts of other . . . religions.” The word “other” implies that whatever religions the
    legislature considered to be part of domestic or Oklahoma culture would not have their
    legal precepts prohibited from consideration, while all others would. Thus, the second
    portion of the amendment that mentions Sharia law also discriminates among religions.
    -29-
    Because the amendment discriminates among religions, it is “suspect,” and “we
    apply strict scrutiny in adjudging its constitutionality.” Larson, 
    456 U.S. at 246
    .
    b. Applying Larson’s Strict Scrutiny
    To survive strict scrutiny under Larson, Appellants must show (1) a compelling
    government interest, and (2) that the amendment is “closely fitted” to that compelling
    interest. See 
    id. at 246-47
    .
    We pause here to clarify the burdens each party carries at this stage in the
    litigation. To succeed in his quest for a preliminary injunction under the heightened
    standard, Mr. Awad assumes the burden of making a strong showing that he is likely to
    succeed on the merits. See Summum, 
    483 F.3d at 1049
    . However, “burdens at the
    preliminary injunction stage track the burdens at trial.” O Centro Espirita, 
    546 U.S. at 429
     (“[A]s the Government bears the burden of proof on the ultimate question of the
    challenged Act’s constitutionality . . . the movants must be deemed likely to prevail
    unless the Government has shown that [the strict scrutiny test is met].” (quotations
    omitted)). Therefore, if Appellants fail to carry their burden of showing a compelling
    interest and closely fitted means, Mr. Awad will have succeeded in carrying his burden of
    making a strong showing of likelihood of success on the merits.
    i.   Compelling State Interest
    We first consider whether Appellants have asserted a compelling interest. For an
    interest to be sufficiently compelling to justify a law that discriminates among religions,
    the interest must address an identified problem that the discrimination seeks to remedy.
    -30-
    See Brown v. Entm’t Merch. Ass’n, 
    131 S. Ct. 2729
    , 2738 (2011). Appellants must
    identify an actual concrete problem—“[m]ere speculation of harm does not constitute a
    compelling state interest.” Consol. Edison Co. of New York, Inc. v. Pub. Serv. Comm’n
    of New York, 
    447 U.S. 530
    , 543 (1980); see also Turner Broadcasting Sys., Inc. v. FCC,
    
    512 U.S. 622
    , 644 (1994) (plurality) (“[The government] must demonstrate that the
    recited harms are real, not merely conjectural, and that the regulation will in fact alleviate
    these harms in a direct and material way.”).
    Supreme Court case law instructs that overly general statements of abstract
    principles do not satisfy the government’s burden to articulate a compelling interest. For
    example, in Brown, the Supreme Court insisted that “[t]he State must specifically identify
    an actual problem in need of solving . . . .” 131 S. Ct. at 2738 (quotations omitted).
    Similarly, in Watchtower Bible Tract Society of New York, Inc. v. Village of Strauss, 
    536 U.S. 150
     (2002), the Court rejected the government’s asserted general interest of crime
    prevention in part because “there is an absence of any evidence of a special crime
    problem related to [the challenged discriminatory law] in the record before us.” 
    Id. at 169
    .
    The supplemental briefing order asked how the Establishment Clause issue should
    be analyzed and decided under the Larson test. Appellants provided only one sentence
    on compelling interest. They simply assert that “Oklahoma certainly has a compelling
    interest in determining what law is applied in Oklahoma courts.” Aplt. Supp. Br. at 16.
    Oklahoma’s asserted interest is a valid state concern. But this general statement
    -31-
    alone is not sufficient to establish a compelling interest for purposes of this case.
    Appellants do not identify any actual problem the challenged amendment seeks to solve.
    Indeed, they admitted at the preliminary injunction hearing that they did not know of
    even a single instance where an Oklahoma court had applied Sharia law or used the legal
    precepts of other nations or cultures, let alone that such applications or uses had resulted
    in concrete problems in Oklahoma. See Awad, 
    754 F. Supp. 2d at 1308
    ; Aplt. App. Vol.
    1 at 67-68.
    Given the lack of evidence of any concrete problem, any harm Appellants seek to
    remedy with the proposed amendment is speculative at best and cannot support a
    compelling interest.15 “To sacrifice First Amendment protections for so speculative a
    gain is not warranted . . . .” Columbia Broad. Sys., Inc. v. Democratic Nat’l Co., 
    412 U.S. 94
    , 127 (1973).
    Because Appellants have failed to assert a compelling interest, they have failed to
    satisfy strict scrutiny. Mr. Awad has therefore made a strong showing that he is likely to
    prevail in a trial on the merits.
    15
    Even if Appellants could identify a problem of sufficient importance to
    constitute a compelling interest, under strict scrutiny they still must demonstrate that their
    stated justification is the actual purpose for the proposed amendment and not a
    “rationalization[] for actions in fact differently grounded.” United States v. Virginia, 
    518 U.S. 515
    , 535-36 (1996) (citing Weisenburger v. Wiesenfeld, 
    420 U.S. 636
    , 648 n.16
    (1975)). Indeed, this court has emphasized that “[w]e cannot and will not uphold a
    statute that abridges an enumerated constitutional right on the basis of a factitious
    governmental interest found nowhere but in the defendants’ litigating papers.” Colorado
    Christian Univ., 
    534 F.3d at 1268-69
    .
    -32-
    ii.   “Closely Fitted”
    Without a compelling interest based on an actual problem, the second step of the
    strict scrutiny analysis—whether there is a close fit with a compelling state interest—is
    unnecessary and not feasible. See Larson, 
    456 U.S. at 246-47
    . It is unnecessary because
    both a compelling interest and a close fit are required to survive strict scrutiny. See 
    id.
     It
    is not feasible because we have no concrete problem or compelling interest to try to fit
    with the Save Our State Amendment. One cannot try on a glove to see if it fits when the
    glove is missing.
    Nonetheless, we make the following observation about the “close-fit” or
    “narrowly tailored” step of strict scrutiny. See Grutter v. Bollinger, 
    539 U.S. 306
    , 333
    (2003) (explaining that strict scrutiny’s narrow tailoring requirement measures whether
    there is a close fit between the means chosen and the compelling interest). The proposed
    amendment goes further than preventing courts from “applying” Sharia law. The
    amendment forbids state courts from “considering” those laws. See Aplt. App. Vol. 1 at
    168. Even if the state could identify and support a reason to single out and restrict Sharia
    law in its courts, the amendment’s complete ban of Sharia law is hardly an exercise of
    narrow tailoring. Appellants have not carried their burden to show why the proposed
    amendment is “closely fitted” to a compelling interest. See Brown, 
    131 S. Ct. at 2738
    (explaining that the government assumes the burden to demonstrate a restriction “is
    narrowly drawn to serve” a compelling interest). Mr. Awad therefore has made a strong
    showing that he is likely to succeed on the merits.
    -33-
    2. Mr. Awad Has Shown He Will Suffer Irreparable Injury If the
    Injunction Is Denied
    The second factor is whether irreparable injury is likely without the injunction.
    See Winter, 
    555 U.S. at 20
    . For the same reasons presented in the standing portion of this
    opinion, we disagree with the Appellants’ argument that Mr. Awad faces no injury if the
    injunction is denied. However, the question here is not just whether Mr. Awad faces a
    concrete and imminent injury, but whether such an injury will be irreparable without the
    injunction.
    “A plaintiff suffers irreparable injury when the court would be unable to grant an
    effective monetary remedy after a full trial because such damages would be inadequate or
    difficult to ascertain.” Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 
    269 F.3d 1149
    , 1156 (10th Cir. 2001). Furthermore, “[w]hen an alleged constitutional right is
    involved, most courts hold that no further showing of irreparable injury is necessary.”
    Kikumura v. Hurley, 
    242 F.3d 950
    , 963 (10th Cir. 2001) (quotations omitted).
    “Damages would be inadequate or difficult to ascertain,” Dominion Video
    Satellite, 
    269 F.3d at 1156
    , for a claim of government condemnation of one’s religion.
    Mr. Awad has alleged that if the Oklahoma amendment takes effect, he will suffer such a
    condemnation injury in violation of constitutional rights. The district court did not abuse
    its discretion in holding that Mr. Awad is likely to face irreparable injury absent an
    injunction. See Awad, 
    754 F. Supp. 2d at 1307
    .
    3. Mr. Awad Has Made a Strong Showing that his Threatened Injury
    Outweighs the Injury the Appellants Will Suffer Under the Injunction
    -34-
    The third factor concerns the balance of harms. Under the heightened standard of
    review, Mr. Awad must make a strong showing that his threatened injury outweighs any
    injury to Appellants caused by granting the injunction. See Summum, 
    483 F.3d at 1049
    .
    Appellants argue that the balance weighs in their favor because Oklahoma voters have a
    strong interest in having their politically expressed will enacted, a will manifested by a
    large margin at the polls. But when the law that voters wish to enact is likely
    unconstitutional, their interests do not outweigh Mr. Awad’s in having his constitutional
    rights protected. See Coal. for Econ. Equity v. Wilson, 
    122 F.3d 692
    , 699 (9th Cir. 1997)
    As the Ninth Circuit explained, when a law that voters have approved “affronts the
    federal Constitution—the Constitution which the people of the United States themselves
    ordained and established—the court merely reminds the people that they must govern
    themselves in accordance with the principles of their choosing.” Id.; see also Williams v.
    Rhodes, 
    393 U.S. 23
    , 29 (1968) (“[T]he Constitution is filled with provisions that grant
    Congress or the States specific power to legislate in certain areas; these granted powers
    are always subject to the limitation that they may not be exercised in a way that violates
    other specific provisions of the Constitution.”).
    Appellants admitted at the preliminary injunction hearing that they did not know
    of any instance where an Oklahoma court had applied Sharia law or used the legal
    precepts of other nations or cultures. See Awad, 
    754 F. Supp. 2d at 1308
    ; Aplt. App. 157-
    58. Delayed implementation of a measure that does not appear to address any immediate
    -35-
    problem will generally not cause material harm, even if the measure were eventually
    found to be constitutional and enforceable.
    We hold that the district court did not abuse its discretion in deciding that Mr.
    Awad made a strong showing that his threatened injury outweighed any potential harm to
    Appellants in granting the injunction. See Awad, 
    754 F. Supp. 2d at 1308
    .
    4. Mr. Awad Has Shown the Injunction Would Not Be Adverse to the
    Public Interest
    The last factor is whether the preliminary injunction would not be adverse to the
    public interest. See Beltronics, 
    562 F.3d at 1070
    . Appellants argue that the preliminary
    injunction interferes with Oklahomans’ fundamental right to vote, prevents enactment of
    the voters’ will, and “discourages the voters from participating in the election process.”
    Aplt. Reply Br. at 14.
    Federal courts should be wary of interfering with the voting process, but we agree
    with the district court and the Sixth Circuit that “‘it is always in the public interest to
    prevent the violation of a party’s constitutional rights.’” Awad, 
    754 F. Supp. 2d at 1308
    (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 
    23 F.3d 1071
    , 1079 (6th
    Cir. 1994)). “While the public has an interest in the will of the voters being carried out
    . . . the public has a more profound and long-term interest in upholding an individual’s
    constitutional rights.” Id.; see also Cate v. Oldham, 
    707 F.2d 1176
    , 1190 (10th Cir.
    1983) (noting “[t]he strong public interest in protecting First Amendment values”).
    -36-
    We therefore hold that the district court did not abuse its discretion in determining
    that the preliminary injunction was not adverse to the public interest. See Awad, 
    754 F. Supp. 2d at 1308
    .
    ***
    We conclude that the district court did not abuse its discretion in holding that each
    of the preliminary injunction factors weighed in favor of Mr. Awad’s request and that he
    made a strong showing on the substantial likelihood and balance-of-harms factors as the
    heightened standard requires. We hold that the district court did not abuse its discretion
    in granting the preliminary injunction.16
    III.      CONCLUSION
    Because Mr. Awad has at least one justiciable claim and because the district court
    did not abuse its discretion in granting the preliminary injunction, we affirm.
    16
    Appellants raised the issue of severability of the Sharia law portions of the
    amendment for the first time to this court in post-oral argument supplemental briefing.
    Their argument consisted of one sentence and cited no authority, stating that if this court
    decides the Sharia law provisions in the amendment render the amendment invalid, “the
    court should simply treat the explicatory example as surplusage, and strike it.” Because
    this issue has not been adequately briefed, we do not address it. See United States v.
    Cooper, 
    654 F.3d 1104
    , 1128 (10th Cir. 2011) (“It is well-settled that arguments
    inadequately briefed in the opening brief are waived.” (quotations omitted)).
    -37-
    

Document Info

Docket Number: 10-6273

Filed Date: 1/10/2012

Precedential Status: Precedential

Modified Date: 3/3/2016

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