Awad v. Ziriax Unless otherwise stated, you should answer in complete sentences, and be sure to use correct English, spelling, and grammar. Sources must be cited in APA format. Your response should be

Awad v. Ziriax

Unless otherwise stated, you should answer in complete sentences, and be sure to use

correct English, spelling, and grammar. Sources must be cited in APA format.

Your response should be a minimum of four (4) double-spaced pages; refer to the

Length and Formatting instructions below for additional details.

In complete sentences respond to the following prompts:

 Summarize the facts of the case;

 Identify the parties and explain each party’s position;

 Outline the case’s procedural history including any appeals;

 What is the legal issue in question in this case?

 How did the court rule on the legal issue of this case?

 What facts did the court find to be most important in making its decision?

 Respond to the following questions:

o Can a U.S. court enforce a clause in a contract specifying that Sharia law

will apply?

o When, if ever, should a national court look to decisions of courts in other

nations when interpreting its own nation’s constitution?

o

 Do you agree or disagree with the court’s decision? If you disagree, provide an

explanation of your reasoning.

PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT 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. --

-------------------------- 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 ANTIDEFAMATION LEAGUE, THE BAPTIST JOINT COMMITTEE FOR RELIGIOUS LIBERTY,

THE CENTER FOR ISLAMIC PLURALISM, INTERFAITH ALLIANCE, AND THE No. 10-6273 FILED United States

Court of Appeals Tenth Circuit January 10, 2012 Elisabeth A. Shumaker Clerk of Court -2- 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; AntiDefamation 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. -3- 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 . . . -4- 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 . . . -5- 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). -6- 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 -7- 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. -8- 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. -9- 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? -10- 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 -11- 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 -12- 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. -13- 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 . . . -14- 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. -15- 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 -16- 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)). -17- 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. -

18- 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 -19- 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). -20- 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). -21- 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 -22- 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 -23-

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 -24- 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 . . . -25- 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).

11In 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. -26- 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 -27- 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 12The 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 Geddicks, 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.”). 13In 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. 14Although 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 . . . -28- 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). -29-

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. -30- 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. -31- 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 -32- 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. 15Even 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. -33- 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. -34- 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 -35- 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 -36- 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. Fede