Application of Religious Law in U.S. Courts: Selected Legal Issues
Congressional research reportJan 11, 2012
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Application of Religious Law in U.S. Courts:
Selected Legal Issues
Cynthia Brougher
Legislative Attorney
January 11, 2012
Congressional Research Service
7-....
www.crs.gov
R41824
CRS Report for Congress
Prepared for Members and Committees of Congress
Application of Religious Law in U.S. Courts: Selected Legal Issues
Summary
Controversy has surrounded attempts by several state legislatures to limit the consideration of
Islamic religious law (commonly referred to as sharia) or religious law generally, in domestic
courts. In one of the most publicized examples, Oklahoma voters definitively approved a state
constitutional amendment that prohibited state courts from considering “sharia law,” but the
amendment has not taken effect pending the outcome of a lawsuit challenging its
constitutionality. Other states have introduced variations of this limitation, with some generally
prohibiting the use of religious principles in domestic courts.
Critics have questioned the constitutionality of several recently proposed or enacted measures
under the religion clauses of the First Amendment of the U.S. Constitution. The Establishment
Clause prohibits the government from establishing an official religion or showing preference
among religions or between religion and non-religion. The Free Exercise Clause prohibits the
government from burdening an individual’s ability to exercise his or her religious beliefs if the
burden does not arise from neutral law of general applicability but instead infringes upon a
particular set of beliefs. Any bill that would specifically ban sharia may be challenged as a
disapproval of Islam in violation of the Establishment Clause or as an infringement on the ability
of Muslims to freely exercise their beliefs under the Free Exercise Clause. Broader proposals that
address religion generally would not necessarily comport with the First Amendment either,
however.
This report discusses proposals to limit the consideration by domestic courts of religious
principles in general, and Islamic law in particular. It explains the role that religious law and
beliefs may play in U.S. courts and analyzes the constitutional protections for religion in the First
Amendment. Finally, the report also addresses the role of foreign and international law generally
in U.S. courts and potential unintended consequences of restrictions on the consideration of
religious or foreign law.
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Application of Religious Law in U.S. Courts: Selected Legal Issues
Contents
Religious Law and Its Application in U.S. Courts........................................................................... 1
Consideration of Religious Law by U.S. Courts ....................................................................... 2
Overview of Sharia.................................................................................................................... 5
First Amendment Issues Related to Prohibitions on Religious Laws in Courts .............................. 6
Restrictions on Free Exercise of Religion ................................................................................. 6
Establishment of Religion ......................................................................................................... 7
Selected Proposed Prohibitions on Application of Religious Law .................................................. 9
Avoidance of Matters of Religious Doctrine ............................................................................. 9
Perceived Treatment Toward Different Religious Beliefs ....................................................... 11
Consideration of Foreign Law in Domestic Courts................................................................. 13
Unintended Consequences....................................................................................................... 15
Appendixes
Appendix. Selected Examples of Pending and Proposed Prohibitions on Application of
Religious Laws, Including Sharia............................................................................................... 17
Contacts
Author Contact Information........................................................................................................... 21
Acknowledgments ......................................................................................................................... 21
Congressional Research Service
Application of Religious Law in U.S. Courts: Selected Legal Issues
O
ver the past year, several state legislatures have proposed measures that would restrict the
consideration of religious law in domestic courts. In November 2010, voters in Oklahoma
definitively approved a state constitutional amendment that would prohibit the use or
application of Islamic law (sharia) in state courts,1 which led to a lawsuit challenging the
constitutionality of the amendment under the First Amendment of the U.S. Constitution.2
Numerous other states have proposed a variety of state constitutional amendments or statutory
provisions with similar goals of limiting the legal recognition of sharia and religious law
generally.3
Religious law binds the followers of a particular religion. Although the First Amendment bars the
government from adopting religious law as binding legal authority, religious law nonetheless may
apply in certain legal scenarios. Parties to private agreements or civil transactions (e.g., contracts,
arbitration agreements, domestic relations agreements or settlements) may provide that religious
law would apply to the terms of the agreement or in the case of a dispute or breach of the
agreement. In such instances, the application of religious law can only be included if each of the
parties to the agreement knowingly consents to such terms. Religious law may be invoked in the
public law context as a defense to certain actions or violations of criminal prohibitions under
certain scenarios. It cannot be a defense to laws of general applicability that only tangentially
affect religious exercise, but it may be used if a particular law is deemed to target religious
exercise.
This report will discuss various legal issues related to the role of religious law in U.S. courts. It
will provide a brief discussion of religious law and the role it may play within the United States
and its judicial system. It also includes a broader analysis of the First Amendment concerns that
may be triggered by government actions that attempt to limit religious practices in the United
States. Finally, the report explains the role that foreign law generally may have within the U.S.
legal system and potential unintended consequences that may arise from restrictions on the
consideration of religious and foreign laws.
Religious Law and Its Application in U.S. Courts
Various religions have developed their own set of precepts to guide the actions and behaviors of
their particular religious community and followers. For the purposes of this report, these precepts
are generally referred to as religious law—that is, the rules of a particular religious community, as
opposed to secular law, which would be laws adopted by the government of a particular state or
nation. Sharia—often translated as Islamic law, which encompasses rules, norms, processes, and
practices to be followed by Muslims, has been of particular interest recently.4 However, it is not
the only religious legal structure that might intersect with issues before U.S. courts. For example,
in Judaism, the Halakhah and Haggadah comprise the norms by which individuals of the Jewish
faith are governed.5 Similarly, canon law is a body of law that applies to certain sects of
1
H.J. Res. 1056, 52nd Leg., 2nd Sess., State Question No. 755, available at http://www.ok.gov/elections/documents/
sq_gen10.pdf.
2
Awad v. Ziriax, No. CIV-10-1186-M (W.D. Okla. 2010).
3
Examples of these proposals are included in the Appendix of this report.
4
Nathan J. Brown, Shari’a and State in the Modern Muslim Middle East, 29 INT’L J. OF MIDDLE EAST STUDIES 359,
363-64 (August 1997).
5
“Halakhah and Haggadah,” Encyclopedia of World Religions, ENCYCLOPEDIA BRITANNICA 406-07 (2006).
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Application of Religious Law in U.S. Courts: Selected Legal Issues
Christianity.6 These bodies of religious law may play as relevant a role in certain legal actions as
sharia might play in others.
In the United States, these religious laws have no legally binding effect on U.S. citizens because
religious laws cannot be adopted by federal, state, or local governments under the First
Amendment. Rather, individuals who identify with a particular religious group may voluntarily
subject themselves to such religious laws by their association with the community.7 For example,
if a particular religious sect or denomination requires its members to dress modestly, and an
individual who is a member of that particular group does not comply with the dress code, that
individual would be in violation of that group’s religious law. The individual’s belief in the
religion’s precepts would guide his or her individual actions, with any sanction for noncompliance generally remaining a private matter between the individual and the religious group.
The individual would not be subject to any penalty by the government because the government
does not enforce such a dress code. Interestingly, this distinction between religious and secular
laws can become complicated when an action might be governed by both religious law and
secular law. For example, many religious denominations’ beliefs prohibit murder under their
religious code. Both federal and state laws also prohibit murder. Thus, an individual who
commits murder would be in violation of both a religious law and a secular law and may be
sanctioned by the religious group, the government, or both.
The First Amendment’s protections for religious exercise are not limited to traditional notions of
worship, but extend to other behaviors that may be motivated by religious beliefs.8 Religious law
often times is not limited to traditional worship or religious activities. Rather it may extend to
day-to-day practices and behaviors. That is, Christianity may require attendance of religious
services on Sunday but it also instructs its followers to perform charitable acts toward other
individuals. Under Christian religious law, an individual’s exercise of Christian beliefs may
include both going to church and assisting one’s neighbors. Similarly, in compliance with sharia,
Muslims should not only observe daily prayers, but also conduct financial dealings consistent
with their religious law.9 This understanding of the broad scope of many religious laws is
significant when considering how these laws may intersect with the secular legal system.
Consideration of Religious Law by U.S. Courts
Various commentators have expressed concern that the legal concepts embodied in sharia would
influence domestic judicial decisions.10 There are several areas of law in which concerns about
the consideration of sharia or other religious law in U.S. courts may arise. Although application of
religious principles as a part of the U.S. legal system would generally be inconsistent with the
First Amendment, certain legal scenarios may invoke valid consideration of religious principles.11
6
“Canon Law,” Encyclopedia of World Religions, ENCYCLOPEDIA BRITANNICA 181-82 (2006).
See Watson v. Jones, 80 U.S. 679 (1872) (“All who united themselves to such a body [the general church] do so with
an implied consent to [its] government, and are bound to submit to it.”).
8
Sherbert v. Verner, 374 U.S. 398, 404 (1963).
9
See CRS Report RS22931, Islamic Finance: Overview and Policy Concerns, by Shayerah Ilias.
10
For instance, former Speaker of the House Newt Gingrich has touted the necessity of a federal law banning the use of
sharia by federal courts. Sharron Angle, while campaigning for a Nevada seat in the U.S. Senate, claimed that two
American cities were already under the control of sharia law. See, e.g., Sense About Sharia, ECONOMIST, October 14,
2010, available at http://www.economist.com/node/17251830?story_id=17251830&.
11
Although courts cannot use the dictates of a religion to determine their decisions, courts may consider evidence of a
(continued...)
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Application of Religious Law in U.S. Courts: Selected Legal Issues
For example, parties to a contract enjoy a great deal of leeway to establish binding agreements
requiring contractual disputes to be submitted to arbitration.12 In their arbitration agreement, the
disputing parties can bind themselves to use a particular arbitrator.13 Courts have held that
arbitration agreements providing for what is commonly referred to as “biblically based
mediation” (relying on specified principles of the Christian Bible) are enforceable.14 Likewise,
courts have also dealt with arbitration agreements specifying that Islamic arbitrators, relying on
sharia or sharia-based law, govern the dispute settlement. For instance, a Texas state appellate
court recognized a signed arbitration agreement providing for arbitration by the Texas Islamic
Court as valid and enforceable and compelled submission of all claims to the Texas Islamic
Court.15 In Minnesota, a state appellate court upheld an arbitration award from an Islamic
arbitration committee applying Islamic law.16 Though some of the legal ramifications of these
Islamic arbitration agreements are still unclear, courts have in most respects treated them no
differently than other arbitration agreements.17 Such agreements reflect the mutual consent of the
parties to use Islamic principles and institutions in subsequent disputes.
Another example of the influence of sharia in domestic courts is S.D. v. M.J.R., a New Jersey
domestic violence case.18 In that dispute, a Muslim wife filed for a restraining order against her
husband after several instances of physical abuse and non-consensual sexual intercourse.19
Though the trial court found that the defendant had engaged in sexual acts that were clearly
against his wife’s wishes, it did not grant a final restraining order because the husband lacked the
(...continued)
particular party’s religious beliefs when reaching their conclusion under secular laws. This scenario often arises in
criminal cases, where a party relies on his or her religious beliefs to disprove some element of a crime, and has been
raised in the context of a variety of cultures. For examples and a broader discussion of these types of cases, see Nancy
S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. Rev.
101 (1997); Kent Greenawalt, Commentary: The Cultural Defense: Reflections in Light of the Model Penal Code and
the Religious Freedom Restoration Act, 6 Ohio St. J. Crim. L. 299 (2008).
12
According to the Federal Arbitration Act, “A written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or
transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration
an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. §2 (2006).
Many states have similar provisions.
13
See, e.g., 9 U.S.C. §5 (“If in the agreement provision be made for a method of naming or appointing an arbitrator or
arbitrators or an umpire, such method shall be followed.”).
14
Woodlands Christian Academy v. Weibust, No. 09-10-00010-CV (Tex. App. October 7, 2010); Easterly v. Heritage
Christian Schools, 107 Fair Empl. Prac. Cas. (BNA) 173 (S.D. Ind. 2009).
15
Jabri v. Qadurra, 108 S.W.3d 404 (Tex. App. 2003). It should be noted that the case revolved around the question of
whether the agreement applied to all of the disputes between the parties, not the Islamic nature of the mediators. Id. at
411.
16
Abd Alla v. Mourssi, 680 N.W.2d 569 (Minn. Ct. App. 2004).
17
For instance, in In re Aramco Services, No. 01-09-00624-CV (Tex. Ct. App. March 19, 2010), the Texas Court of
Appeals faced a disagreement between the parties about the appointment of an arbitrator. The Arbitration Agreement
specified that the law of Saudi Arabia would apply and required that the arbitrators would be Saudi nationals or Muslim
foreigners. Using traditional contract interpretation techniques, the Court of Appeals overturned the lower court’s
decision to appoint arbitrators because the Court of Appeals interpreted the agreement to require that a Saudi court
handle such appointment. However, it specifically refused to address the question of whether, had the lower court been
empowered to appoint the arbitrators, it would have been bound to appoint only Saudi nationals or Muslim foreigners.
18
S.D. v. M.J.R., 2 A.3d 412 (N.J.Super.A.D. 2010).
19
Id. at 415-17.
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Application of Religious Law in U.S. Courts: Selected Legal Issues
requisite criminal intent to commit sexual assault.20 This decision was based on the theory that the
defendant acted based on his religious belief that a husband may demand to have intercourse with
his wife whenever he desired.21 On appeal, the New Jersey Appellate Division overturned the trial
court’s decision and remanded the case to the lower court for entry of a final restraining order.22
Noting that the case involved “a conflict between the criminal law and religious precepts,” the
appellate court held that the defendant knowingly engaged in non-consensual sexual intercourse
and thus could not be excused for his religious beliefs.23
These examples of cases in which sharia and other religious law have been raised represent only
two of the scenarios in which religious law might be considered by a court. Courts generally
appear willing to allow private parties to private agreements to consent to obligations of religious
law that they may choose to apply to a particular agreement. However, there are situations that
may arise where the application of religious law may be contrary to public policy or raise other
general concerns. Thus, there is a tension between the permissibility and potential desirability of
allowing individuals to seek application of religious law under private agreements as a matter of
free exercise of their religion and the potential unforeseen risks of such application of religious
law in a broader context.
Consider, for example, an individual who validly executes a will for the distribution of his assets
after death. That individual knowingly and willingly creates a legal document in accordance with
his wishes. If the individual provides that the assets be distributed according to his religion’s law,
it may appear clear that he wishes to comply with his religious obligations and according to
traditional interpretation of wills, the intent of the decedent is paramount. However, without
further instruction as to what that particular individual believes the religion’s law to include, the
court that probates the will would then face questions about the content of religious law, a subject
that courts tend to avoid. Had the individual specifically provided the principles of religious law
that he wished to be applied, the court may be able to objectively probate the will according to his
wishes for religious law, without facing the constitutional obstacles associated with probing
religious doctrine. This example illustrates the difficulty of reconciling the various tensions
associated with drafting a limitation on the role of religious law in U.S. courts. On one hand, the
constitutional right of free exercise suggests that such a restriction might contravene a public
policy of independence to follow one’s one religious conscience. On the other hand, the
constitutional prohibition on interference of the government in religious matters suggests that
consideration of religious law by domestic courts might undermine the public policy of ensuring
that an individual’s religious conscience is indeed self-determined. A legislative restriction,
whether on specific religious law or religious law generally, is likely to create numerous
unforeseen risks and potential unintended consequences.
20
Id. at 418.
Id.
22
Id. at 413.
23
Id. at 422.
21
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Overview of Sharia
Although a comprehensive explanation of sharia is beyond the scope of this report, a brief
overview of sharia is necessary to understand the context in which it may arise in courts. Shari’a
is an Arabic word often translated to “Islamic law,” and can be defined as the legal and moral
code of Islam.24 Sharia generally is explained as a compilation of various sources of religious
principles which are in turn interpreted to provide guidance on religion, politics, economics,
banking, business, law, and other aspects of Muslim life. The two primary sources of sharia are
the Quran and the Sunna, which refers to the actions and words of Muhammad (the central
prophet of Islam).25 Historically, sharia served as one reference point for judicial decision making
and dispute resolution in many predominantly-Muslim societies. Over time, many of these
societies adopted secular legal codes that in some instances replaced and in other instances
absorbed established sharia principles and practices.
The interpretation of sharia principles is referred to as fiqh.26 Fiqh has been explained as “Islamic
jurisprudence,” essentially the application of sharia principles to various scenarios.27 As one
scholar explains,
Four methods, often called sources of law by Muslim writers, for deducing and establishing
fiqh-based law are universally recognized by Islamic jurists. They are: (1) the extraction of
Qur’anic injunctions and principles based on interpretations of it; (2) the application of the
principles reflected through the Hadith of Prophet Muhammad; (3) the consensus of opinion
from among the companions of Muhammad or the learned scholars (ijma); and (4) analogical
deduction (qiyas). … Both Muslim and non-Muslim scholars regard these four methods of
law as the roots of Islamic jurisprudence.28
Like other legal codes, the interpretation of sharia has been a subject of scholarly debate. As is
the case in any legal system, religious or secular, the recognized sources of law likely do not
address every problem that may arise. Various schools of interpretation have developed to fill in
the gaps over time and individuals may choose to associate themselves and their communities
with one or more of these schools of thought. As in other religions, individuals have a range of
views about the appropriateness and desirability of using religious law and principles to decide
important questions. Some Muslims reject the use of long-standing sharia practices and traditions
for resolving judicial and personal matters. For others, reference to sharia may be an important
part of their personal faith or an important marker of their perceived identity. Opinions also vary
widely on the proper role of any government in protecting, interpreting, or enforcing sharia.
24
“Shari’a,” Encyclopedia of World Religions, ENCYCLOPEDIA BRITANNICA 991 (2006).
The Sunna are reported in what is known as the Hadith. See Irshad Abdal-Haqq, Islamic Law: An Overview of Its
Origins and Elements, 7 J. ISLAMIC L. & CULTURE 27, 33 (2002).
26
Id. at 36.
27
Id.
28
Id. at 36-37.
25
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First Amendment Issues Related to Prohibitions on
Religious Laws in Courts
The First Amendment states that “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof....”29 These clauses are commonly referred to as
the Establishment Clause and the Free Exercise Clause. Potential limitations on particular
religious beliefs may run afoul of the Free Exercise Clause if they impose restrictions on the
ability of individuals to practice their religious faith. Alternatively, such limitations may raise
concerns under the Establishment Clause if they may be deemed to target one religion but not
place similar limitations on other religions.
Restrictions on Free Exercise of Religion
The Free Exercise Clause prohibits governmental regulation of religious beliefs.30 However,
actions motivated by religious beliefs may be subject to regulation in certain circumstances.31
Government regulation of religiously motivated behavior may be constitutional if the challenged
regulation is “a valid and neutral law of general applicability.”32 Such laws may incidentally
burden the religious practices of some individuals. In order for a neutral law of general
applicability to be deemed constitutional, the law must be related to a legitimate government
interest.
Certain governmental actions may specifically address religion, however.33 Laws that provide an
accommodation of individual religious exercise have been upheld in a number of cases.34
However, if a law specifically targets one religion’s practices or religiously motivated practices
generally, the Court has held that it is subject to a heightened standard of constitutional review.
Such laws must be related to a compelling government interest and be narrowly tailored to
advance that interest.35 The Court has explained that a law is not neutral if its object “is to
infringe upon or restrict practices because of their religious motivation.”36 At a minimum, in
order to be neutral, a law cannot explicitly restrict a set of religious practices—that is, it must be
facially neutral. Of course, some laws that appear facially neutral may still not comport with
constitutional requirements, as “the Free Exercise Clause protects against governmental hostility
which is masked as well as overt.”37 Attempts to regulate certain religiously motivated practices
29
U.S. CONST. amend. I.
See Sherbert v. Verner, 374 U.S. 398 (1963).
31
See United States v. Lee, 455 U.S. 252 (1982); Gillette v. United States, 401 U.S. 437 (1971); Braunfeld v. Brown,
366 U.S. 599, 603 (1961); Prince v. Massachusetts, 321 U.S. 158 (1944); Reynolds v. United States, 98 U.S. 145
(1878).
32
Employment Div., Oregon Dep’t of Human Resources v. Smith, 494 U.S. 872, 879 (1990) (internal quotes omitted).
33
The First Amendment does not wholly bar the government from addressing religion, and the Court has allowed the
government to accommodate individuals’ free exercise rights without violation of the prohibition on establishment.
One example of such accommodation is chaplains’ corps in the armed forces. See CRS Report R41171, Military
Personnel and Freedom of Religion: Selected Legal Issues, by (name redacted) and Cynthia Brougher.
34
See, e.g., Cutter v. Wilkinson, 544 U.S. 709 (2005); Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987).
35
Church of Lukumi Babalu Aye, 508 U.S. at 533.
36
See id.
37
Id. at 534.
30
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without specifically mentioning the targeted religious beliefs have been held in some cases to be
“religious gerrymandering” in violation of the First Amendment.38 If a law proscribes more
religious conduct than necessary to achieve the intended result, it may be deemed in violation of
the Free Exercise Clause.39
Establishment of Religion
The Establishment Clause prohibits the government from taking actions that would benefit one
religion or religion generally.40 The U.S. Supreme Court has used a variety of tests to determine
whether a particular legislative measure would violate the Establishment Clause, but it has
traditionally relied upon the tripartite Lemon test most often. The Lemon test requires that a
challenged law 1) have a secular purpose, 2) have a primary effect that neither advances nor
inhibits religion, and 3) not foster excessive entanglement with religion.41 The Court has accorded
deference to stated legislative purposes, but has also required that the stated purpose “be sincere
and not a sham.”42 It has explained that a neutral effect may be evidenced if the challenged law
impacts “a broad spectrum of citizens,” for example, a tax deduction available for sectarian
educational expenses that is also available to secular educational expenses, such that the law does
not provide a distinct benefit available based on religion.43 Finally, the Court has required that
laws cannot create a relationship between government and religious entities that would cause one
to interfere in the internal affairs of the other.44
The Court has applied modified versions of this test in some cases and abandoned it in other
cases, but it has not announced a new test that it has applied consistently in place of the Lemon
test. One relevant modified version of the Lemon test is commonly referred to as the endorsement
test, which examines whether the purpose or effect of the challenged law conveys a message that
certain religions are preferred or disfavored over others.45 The endorsement test forbids
“government endorsement or disapproval of religion.” The Court has noted that the government is
prohibited “from making adherence to a religion relevant in any way to a person’s standing in the
political community.”46 It explained that “endorsement sends a message to nonadherents that they
are outsiders … and an accompanying message to adherents that they are insiders, favored
members of the political community. Disapproval sends the opposite message.”47
Another variation of the Lemon test that the Court has used focuses on neutrality as the governing
principle in Establishment Clause challenges. Under this interpretation, the critical determination
is whether the law is neutral between religions and between religion and non-religion.48 The
38
Walz, 397 U.S. at 696; Church of Lukumi Babalu Aye, 508 U.S. at 535.
Church of Lukumi Babalu Aye, 508 U.S. at 537-38.
40
See Everson v. Board of. Educ., 330 U.S. 1, 15 (1947).
41
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
42
Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987); see also Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 308
(2000); Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O’Connor, J., concurring in the judgment).
43
Mueller v. Allen, 463 U.S. 388, 397-99 (1983).
44
Walz v. Tax Commission, 397 U.S. 664 (1970).
45
Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984) (O’Connor, J., concurring).
46
Id.
47
Id.
48
Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968).
39
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Court has held that the government does not act constitutionally if it proscribes some action “for
the sole reason that it is deemed to conflict with a particular religious doctrine.”49 The Court
declared that the prohibition on adopting public programs or practices that aid or oppose any
religion is absolute, and emphasized that the prohibition included both support of a particular
doctrine or prohibition of theory “deemed antagonistic to a particular dogma.”50
At times, the Court has attempted to distinguish its constitutional analysis based on the type of
special treatment received. For example, the Court has appeared to make a distinction between
laws that benefit religion generally and those that discriminate against a particular religion. In
Larson v. Valente, the Court struck down a charitable organization registration provision because
its exception for religious organizations distinguished among religions, depending on whether a
particular religious organization received a certain amount of donations from its members.51
Under the Larson test, strict scrutiny must be applied to laws granting such a preference, meaning
that the preferential law must be justified by a compelling governmental interest and must be
“closely fitted” to further that interest.52 The Court explained that Lemon would “apply to all laws
affording a uniform benefit to all religions, and not to provisions … that discriminate among
religions,” which should be considered under the Larson test.53 It appears that the Court may have
been attempting to distinguish between challenges to laws that show preference toward religion
and laws that show discrimination against religion. However, the infrequency of laws that
specifically discriminate among religions has meant that Larson has rarely been applied in cases
before the Court, leaving questions as to its proper application.54
Additionally, the Supreme Court has even questioned the applicability of the Establishment
Clause in cases involving public acts constituting disapproval of religion, noting that few laws
specifically target religious belief or practice.55 Rather, it has indicated that such cases may fall
outside the purview of the Establishment Clause and may be better understood under a Free
Exercise analysis. In 1993, the Supreme Court considered the constitutionality of legislation
passed by a Florida town that limited the ability of practitioners of Santeria to carry out the
animal sacrifices that their religion required.56 The Court noted its long-standing principle in
Establishment Clause cases “that the First Amendment forbids an official purpose to disapprove
of a particular religion....”57 However, the Court explained that Establishment Clause
49
Id. at 103.
Id. at 106-07.
51
Larson v. Valente, 456 U.S. 228 (1982).
52
Id. at 246-47.
53
Id. at 252.
54
Although the Court attempted to draw a distinction between favor and animus in Larson, it seems possible that a
court could analyze an action that appears to promote something with religious significance under a Lemon framework
because the action favors religion generally over non-religion, or under a Larson framework because the action has
shown preference to one religion among many. Cf. McCreary County v. American Civil Liberties Union of Kentucky,
545 U.S. 844 (2005) (challenge to a county requirement to display the Ten Commandments in county courthouses). On
one hand, it may be argued that McCreary should be considered under Lemon because the county has recognized a
religious symbol rather than a secular symbol. On the other hand, it may be argued that Larson could apply because the
county chose a symbol of Christianity, rather than one of another religion. The Supreme Court applied Lemon without
mentioning Larson, which may indicate that even where a particular religion is being promoted, if the challenge is to its
religious nature, Lemon is the more appropriate analysis.
55
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).
56
Id.
57
Id. at 532.
50
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jurisprudence typically involved cases that allegedly benefited some religion and that challenges
to laws that allegedly disfavor religion are more appropriately addressed by the Free Exercise
Clause, as a government action that infringes upon the exercise of the targeted religion.58
Selected Proposed Prohibitions on Application of
Religious Law
Numerous states have proposed measures that would restrict consideration of sharia law or other
religious law in state courts. These proposals have taken the form of state constitutional
amendments, statutory limitations on state courts, and generally applicable criminal statutes. The
following provides a general framework for analysis of the various issues that may arise in
proposals that would limit religious law. The Appendix of this report provides a more detailed
discussion of the particular language that certain states have proposed in their respective efforts to
curtail the influence of Islamic legal traditions and other religious law in the U.S. judicial system.
Avoidance of Matters of Religious Doctrine
As discussed earlier in this report, religious laws are the rules of a particular religious community,
set by the governing authority of that community, and are distinct from secular laws of the
federal, state, and local governments of the United States. These religious laws have no legally
binding authority in the United States, except to the extent to which members of a particular
religious community have bound themselves to the governing religious authority. Religious laws
tend not to be codified in the sense that secular laws are recorded and may vary from one
religious community to another, even if those communities fall under the same nominal umbrella
organization, as some religious sects are more tightly connected by their doctrines than others.
Proposals to ban sharia raise a serious dilemma for legal scholars and jurists because the
composition of sharia remains debated among various Islamic sects and scholars. Without an
authoritative body of law with specific parameters, courts may find themselves faced with a need
to determine the precise principles of sharia and thus offer judgment on the content of a religious
doctrine, which is generally impermissible under the First Amendment.59
The Supreme Court has maintained an understanding that “courts should refrain from trolling
through a person’s or institution’s religious beliefs.”60 The Court has recognized that churches and
other religious institutions have a right under the Free Exercise Clause to address their internal
matters independently and without interference from government institutions. Furthermore, such
action by courts would entangle the legal system in an inquiry of religious authority and doctrine,
suggesting the type of probing interference contemplated by the entanglement prong of the
Lemon test. Accordingly, the Court has barred interference in religious practices through
decisions prohibiting the government from deciding disputes concerning religious authority or
policies.
58
Id.
See, e.g., Awad, No. CIV-10-1186-M (W.D. Okla. 2010).
60
See Mitchell v. Helms, 530 U.S. 793, 828 (2000).
59
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In 1872, the Court recognized that matters of religious doctrine should be determined within the
authority of the particular church and should be separate from any secular legal interpretation:
The law knows no heresy, and is committed to the support of no dogma, the establishment of
no sect. … All who united themselves to such a body [the general church] do so with an
implied consent to [its] government, and are bound to submit to it. But it would be a vain
consent and would lead to total subversion of such religious bodies, if any one aggrieved by
one of their decisions could appeal to the secular courts and have them [sic] reversed. It is of
the essence of these religious unions, and of their right to establish tribunals for the decision
of questions arising among themselves, that those decisions should be binding in all cases of
ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.61
Thus, the Court established the principle that determinations of church doctrine and practice were
to be free of government control well before it had even developed other aspects of its First
Amendment jurisprudence. That general principle has since been cited by the Court in a number
of First Amendment cases involving challenges of government interference in internal church
matters.
In 1952, noting its historic recognition of a prohibition on government interference in matters of
religion, the Court reiterated its earlier understanding of “a spirit of freedom for religious
organizations, an independence from secular control or manipulation—in short, power to decide
for themselves, free from state interference, matters of church government as well as those of
faith and doctrine.”62 The Court accordingly granted federal constitutional protection for the
independent choice of churches for self-governance “as a part of the free exercise of religion
against state interference” when it held that a legislature was constitutionally barred from
determining the proper religious authority of the Russian Orthodox Church.63
On a number of occasions, the Court has reiterated the limits of the First Amendment on
government authority to decide matters of church internal disputes and practices. Just as it
invalidated the legislature from doing, it has also limited courts from overstepping their
constitutional authority in making civil determinations of the propriety of church actions or the
validity of church beliefs.64 The Court has held that “because of the religious nature of [disputes
related to control of church property, doctrine, and practice], civil courts should decide them
according to the principles that do not interfere with the free exercise of religion in accordance
with church polity and doctrine.”65
61
Watson v. Jones, 80 U.S. 679 (1872), quoted in Presbyterian Church v. Hull Memorial Presbyterian Church, 393
U.S. 440, 446 (1969). See also Gonzalez v. Archbishop, 280 U.S. 1 (1929) (“In the absence of fraud, collusion, or
arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil
rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by
contract or otherwise.”).
62
Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952).
63
Id. The constitutional right to select clergy under the Free Exercise Clause is often referred to as the “ministerial
exception” in some civil rights cases. The nature of the ministerial exception has been addressed by a number of federal
appellate courts and will be argued before the Supreme Court in its 2011-2012 term. See Hosanna-Tabor Church v.
EEOC, Docket No. 10-553, cert. granted March 28, 2011).
64
See, e.g., Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960) (courts may not transfer control of church from
general body of the Russian Orthodox Church); United States v. Ballard, 322 U.S. 78 (1944) (holding that the First
Amendment precludes civil bodies from determining the verity of religious doctrines or beliefs).
65
Jones v. Wolf, 443 U.S. 595, 616 (1979). See also Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976);
Presbyterian Church, 393 U.S. 440.
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Recognizing that the authors of the First Amendment understood that “establishment of a religion
connoted sponsorship, financial support, and active involvement of the sovereign in religious
activity,” the Court has interpreted the Establishment Clause to prohibit laws from fostering an
“excessive entanglement” between government and religion.66 The Court has explained the bar on
entanglement as an inquiry of whether the disputed government action would “establish or
interfere with religious beliefs and practices or have the effect of doing so” or would create “the
kind of involvement that would tip the balance toward government control of churches or
governmental restraint on religious practice.”67
Courts have generally exercised this avoidance of matters involving religious doctrine quite
carefully. Absent detailed statutory guidance on the substantive nature of sharia, courts would be
exceeding their constitutional authority by passing judgment on matters involving religious
doctrine. However, detailed legislative guidance on the specific parameters of sharia would
likewise exceed the legislature’s constitutional authority. These restrictions may therefore be
interpreted as rendering prohibitions on the application or interpretation of sharia or other
religious law by U.S. courts moot, given existing constitutional protections.
Perceived Treatment Toward Different Religious Beliefs
Much of the controversy over various proposals to restrict religious law in courts has been rooted
in a debate over the purported motivation to propose such actions. Many advocates of such
restrictions assert that the proposals would ensure that the U.S. judicial system remains free of the
influence of religious dictates. Opponents argue that the proposals are driven by efforts to target
only one religion. The First Amendment analysis of such proposals must confront this suggestion
of perceived animus toward Islam.
The first prong of the Court’s predominant Establishment Clause test, the Lemon test, requires
that a law have a secular purpose. A number of secular purposes may apply in legislative efforts
to restrict the role of religious law within government actions. For example, it may be argued that
these proposals are removing purportedly religious elements from the process of judicial decision
making. Likewise, for broader proposals that ban foreign law or laws of other cultures (which
may include religious law), it may be argued that such proposals would ensure that American law
be the exclusive authority of U.S. courts and thereby uphold the integrity of our democratic
system. However, one may counterargue that such alleged purposes may be masking covert
religious animus, particularly for proposals that specify certain religious laws to be banned, rather
than addressing religious laws generally. The Court has looked at the broader context for a
particular law’s enactment, not just the stated purpose for the law, and in some cases has found
that the legislature’s motivations implied a bias regarding religious views.68
Regardless of whether these proposals are deemed to have a secular purpose, they must also have
a neutral effect with regard to religion under a Lemon analysis. The effect may be considered
66
Walz, 397 U.S. at 668, 674.
Id. at 669-70.
68
See, e.g., McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005) (finding that a
public courthouse religious display had a clearly religious purpose despite officials’ efforts to justify it on secular
grounds); Lynch v. Donnelly, 465 U.S. 668 (1984) (finding that the placement of a creche in a city’s holiday display
had a legitimate secular purpose for its historic value to the holiday season).
67
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neutral if it does not advance or inhibit religion.69 Some have argued that pending proposals to
restrict religious laws would only establish a rubric for choice of laws. Choice of laws refers to a
threshold issue in legal disputes that determines what law would apply in a given case. The
answer may be fairly straightforward, particularly in criminal cases where the law of the state in
which the crime occurred has jurisdiction over the case. Other cases may be more complicated or
may allow the individual parties to agree to which law would apply, as in contract disputes where
the contractual agreement includes a provision for what law would govern the dispute in case of
breach. For the purposes of this report, broader proposals that address religion generally rather
than singling out particular religious views may have a greater likelihood for success under this
argument. Generally applicable restrictions may be less likely to appear to be advancing religion
or inhibiting religion because they have addressed religion categorically.
However, it is important to remember that the First Amendment not only protects against laws
that provide separate treatment of a particular religion compared to others, but also protects
against laws that provide separate treatment of religion generally over non-religion.70
Government actions that would make a benefit available or place a restriction on only certain
religions have been construed as violations of the Establishment Clause.71 However, laws that do
not specify particular religions but treat religion generally may raise constitutional questions
nonetheless if they provide preferential treatment to individuals with religious beliefs, but not to
similarly situated individuals who might seek similar treatment on philosophical, moral or ethical
grounds.72
The proposals by various states to ban sharia specifically also may raise serious constitutional
concerns under the endorsement test. Restrictions on one particular religion, like benefits to a
particular religion, suggest a bias in the government’s treatment of religious groups. The
government, according to the endorsement test, cannot imply that certain religions are favored
over another. Banning one faith’s religious law, while allowing the religious law of other faiths to
be considered, arguably demonstrates disapproval of the singled out religion—in this case, Islam.
Although the apparent bias reflected in bans on specific religious laws may seem to be corrected
by broadening the ban to religious laws generally, the ban would have to be crafted in a way that
did not reflect a religion-specific impetus. That is, even if a law appears neutrally applicable,
courts may find that the intent or effect of the law has a particular impact on one religion more
than others, raising constitutional suspicions.73
Determining whether a ban targets one religion will affect not only the Establishment Clause
analysis, but also any Free Exercise challenges that may be brought. Courts apply different
standards of review depending on whether the challenged law targets religious exercise or
whether it is neutral and generally applicable, having only an incidental effect on religious
exercise. Laws specifically forbidding the use of sharia or other named religious laws may be
69
Lemon, 403 U.S. 602.
Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968).
71
See Bd. of Edu. of Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994); Church of Lukumi Babalu Aye, 508 U.S. 520.
72
As an example, these concerns have been raised in the context of exemptions for mandatory health care programs
(e.g., vaccination requirements), to which some individuals oppose based on religious beliefs and others oppose on
philosophical, ethical, or moral grounds. See, e.g., McCarthy v. Boozman, 212 F.Supp. 2d 945 (W.D. Ark. 2002). The
Supreme Court’s understanding of whether the First Amendment should treat moral and ethical beliefs similarly to
religious beliefs has varied. See Torcaso v. Watkins, 367 U.S. 488 (1961); Welsh v. United States, 398 U.S. 333
(1970); Wisconsin v. Yoder, 406 U.S. 205 (1972); Thomas v. Review Board, 450 U.S. 707 (1981).
73
Church of Lukumi Babalu Aye, 508 U.S. 520.
70
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evaluated under a strict scrutiny standard because they target a particular religion. In challenges
deemed to target religion, the government would have to demonstrate a compelling governmental
interest in treating that particular religion differently from others and also show that the allegedly
required disparate treatment was achieved in a manner that would create the least restrictive
burden on that group’s religious exercise. Some have argued that proposed bans on sharia imply
undertones of animus towards Islam and could suggest an “illegitimate government interest” in
“harm[ing] a politically unpopular group.”74
On the other hand, some of the proposed legislation mentioning religious laws does not only ban
specific religious laws for consideration by courts. Some proposals provide a list of positive
sources of law that is religion neutral. Others propose broader bans on religious law or foreign
law generally. These proposals might be interpreted as neutral laws of general applicability under
Free Exercise analysis and therefore would require only that the proposed restriction be rationally
related to a legitimate governmental interest. A court might find a rational basis in banning the
laws of foreign nations or cultures to ensure that U.S. law remains the controlling authority in
U.S. courts. However, the Supremacy Clause of the U.S. Constitution provides this guarantee
regardless of any enactment of additional statutory or state constitutional restrictions:
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.75
Accordingly, it may be argued that efforts to restrict the application of religious law or the law of
foreign nations and cultures are superfluous to existing federal constitutional requirements. A
related question arises regarding proposals that include both positive sources of law (i.e., a list of
sources that courts may consider) and negative sources of law (i.e., a list of sources that courts
cannot consider). Once courts are given a set of positive sources of law, it seems superfluous to
additionally specify a ban on other sources of law. In other words, whatever sources are not
included in the positive source list may be assumed to be banned without explicitly listing
particular ones separately. This may lead one to argue that proposals providing a list of positive
sources (which does not include any religious laws) that is paired with a ban on sharia or other
religious laws, may actually be considered religiously neutral and lessening the degree of scrutiny
under which courts consider any subsequent constitutional challenges.
Consideration of Foreign Law in Domestic Courts
Some proposals that would restrict the application of religious law ban foreign law or
international law generally. Consideration of foreign and international law by domestic courts has
been a controversial matter for various reasons in recent years.76 The proposed restrictions
74
Memorandum in Support of Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction at 20,
Awad v. Ziriax, No. 10-1186 (W.D. Okla. filed November 4, 2010); see also Romer v. Evans, 517 U.S. 620, 633
(1985) (striking down a state constitutional amendment passed by referendum that limited homosexuals’ access to
protection of antidiscrimination law because the breadth of the amendment and perceived animus against the class
caused the law to fail rational basis review).
75
U.S. CONST. art. VI, cl. 2.
76
For a comprehensive discussion of the implications of foreign law, international law, and international agreements in
the United States, see CRS Report RL32528, International Law and Agreements: Their Effect Upon U.S. Law, by
(continued...)
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Application of Religious Law in U.S. Courts: Selected Legal Issues
discussed in this report appear to be attempting to prevent the application of the laws of foreign
nations that have adopted religious law as the secular law of the national government. Extending
a proposed restriction to include foreign law, rather than a specific religious law or religious law
generally, may appear to avoid First Amendment issues. However, these proposals may, if
enacted, prove to be inconsistent with basic constitutional precepts, including federalism and
separation of powers, as well as with the principle of international comity, a guiding concept in
U.S. court decisions for over a century.
Foreign law generally references the law of other countries and is not binding on U.S. courts. It is
distinguishable from international law, which generally refers to agreements between nations and
laws of international bodies. International law may be legally binding (regardless of state attempts
to restrict its consideration) in the United States if it has been properly adopted by the federal
government pursuant to constitutional authority to conduct foreign affairs. Bans on the
consideration of foreign law or international law that has not been adopted or agreed to by the
United States may raise various legal and policy concerns but might be valid depending on the
circumstances. However, a general ban on international law may be a constitutional violation if
that ban is interpreted to include restrictions on the consideration of treaties or other international
agreements that the United States has entered or adopted pursuant to the U.S. Constitution.77
Additionally, proposals to restrict the consideration of foreign law in courts might be viewed in
some instances as an unconstitutional infringement on judicial authority, in the same way that
there might be significant issues if a law required a court to follow a particular canon of
construction when interpreting the Constitution. Under separation of powers principles, the
judiciary has long been recognized to have the sole power to interpret the laws of the United
States.78 For a legislature to direct courts in how to exercise their judicial authority to determine
the meaning and effect of various laws or judgments would violate these fundamental
constitutional principles.
In some situations, a court may be faced with enforcement of a foreign judgment or arbitration
award or with choice of law rules that would require application of foreign law in certain civil
disputes taking place between private parties, such as when a private contract specifies that the
parties agree to apply the governing principles of a particular country to any dispute between
them. Except where preempted by federal law, state law governs the recognition and enforcement
of foreign judgments in U.S. courts, so states may decide not to enforce foreign judgments in
their courts if no federal law (including a treaty) requires recognition of a particular kind of
judgment. No federal law provides uniform rules, nor is the United States a party to any
international agreement regarding treatment of such judgments.79 Although states generally must
(...continued)
(name redacted).
77
The Supremacy Clause ensures that state laws cannot trump federal law, which includes treaties validly entered and
adopted under the Constitution. U.S. CONST. art. VI, cl. 2.
78
See Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) (“It is emphatically the province and duty of the judicial
department to say what the law is....”).
79
In January 2009, the United States became a signatory to a the Hague Convention on Choice of Court Agreements,
which requires its parties to recognize, with some exceptions, judgments rendered by a court in another signatory
country that was designated in a choice of court agreement between litigants. Hague Convention on Choice of Court
Agreements, June 30, 2005, 44 I.L.M. 1294, available at http://www.hcch.net/index_en.php?act=conventions.pdf&
cid=98. Although 29 countries, including the United Kingdom under the auspices of the European Union, had signed
the Convention as of August 17, 2010, the Convention will not enter force until at least two countries deposit
(continued...)
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recognize judgments from sister states under the Full Faith and Credit Clause of the U.S.
Constitution, that requirement does not apply to judgments from foreign courts.80 For that reason,
even if one state enacts a law prohibiting its courts from enforcing foreign judgments, the
judgment might be enforceable in another state. Broad restrictions on the role of judgments
arising under foreign law raise the specter of a wide range of unintended consequences, including
lack of comity in enforcing U.S. judgments abroad. Although the restrictions on foreign law
discussed in this report appear to be crafted as neutral attempts to restrict the role of religious law
that may have been adopted as foreign law, a broadly drafted restriction on foreign law would
pose the risk that other foreign judgments unrelated to religious law could also not be enforced or
that a contract governed by non-religious foreign law could not be enforced.
Unintended Consequences
A significant concern with a number of the pending proposals to restrict religious laws is the
extent to which they may affect existing legislation. While a comprehensive assessment of the
unintended consequences of these proposals is beyond the scope of this report, a number of
potential issues are relevant to the consideration of these restrictions generally.
As discussed earlier in this report, there are a number of instances in which religious laws may
overlap with secular laws; that is, murder may be prohibited by religious doctrine and also by
statutory enactment. Examples of this overlap range across the legal code, particularly including
criminal laws like those prohibiting theft, assault, or polygamy. Proposed bans on religious laws,
depending on the statutory language, must be carefully drafted to ensure that these areas of
overlap do not create unintended consequences. For instance, if a state enacts a constitutional
amendment banning the application of sharia and both the state’s criminal code and sharia include
a ban on theft, the legislation might be read to preclude courts from enforcing the existing
criminal ban on theft. Thus, proposals that do not provide precise guidance on the elements of
sharia that were contemplated for the ban will raise a host of subsequent dilemmas for courts to
consider.
However, as noted earlier, courts and legislatures are prohibited from defining the parameters of
religious doctrine and therefore would likely encounter numerous difficulties in attempts to
ascertain or declare the precise meaning of a ban on sharia or other religious laws. As a result,
proposed bans on sharia may result in unintended consequences in a number of contexts in which
individuals may seek to act in accordance with the mandates of their religion’s laws while
engaging in various private legal transactions. This issue may create problems with the
administration of one’s estate if his or her will provides for the estate to be divided according to a
specified religious law. It may also affect contracts or financial transactions that include
provisions for the application of religious law in cases of breach or renegotiation. Providing for
the application of a particular set of laws in these scenarios is typically understood to be a
personal choice and has been accepted because the particular parties affected have voluntarily
(...continued)
instruments of ratification or accession with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, the
designated depositary of the Convention. Id. at Arts. 27, 31. To see a list of parties and signatories as of August 17,
2010, visit http://www.hcch.net/upload/statmtrx_e.pdf.
80
U.S. Const. art. IV, §1 (“Full faith and credit shall be given in each state to the public acts, records, and judicial
proceedings of every other state”) (emphasis added). The exclusion of foreign judgments in a state’s courts may raise
due process concerns if there is no rational basis for the exclusion.
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submitted themselves to be governed by the agreed upon set of laws. Bans on religious laws may
restrict individuals’ ability to exercise this autonomy in their private, personal affairs, even if the
ban was not enacted for that purpose. However, parties to private legal transactions or agreements
may avoid constitutional concerns by explicitly including the rules that they want to apply, rather
than directing that the religious code govern. In doing so, courts may avoid reaching any
conclusions about the content of religious doctrine and instead apply an explicit rule included in
the governing legal document.
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Appendix. Selected Examples of Pending and
Proposed Prohibitions on Application of
Religious Laws, Including Sharia
A number of states have proposed or enacted provisions related to the application of religious
laws, including sharia. These provisions have taken a number of forms (e.g., constitutional
amendments, statutory legislation, etc.) and may have been amended by the respective state
governmental bodies. For the purposes of illustration, various approaches that have been used by
states seeking to address the issue of religious law in U.S. courts are set forth below.
Constitutional Amendment Banning Sharia Law (Oklahoma)
In November 2010, Oklahoma voters considered Question 755, a constitutional amendment
requiring state courts to rely only on federal or state law to decide cases. This amendment
specifically would bar courts from considering international law or sharia in any case before the
courts. The amendment provides that Oklahoma’s state courts:
shall uphold and adhere to the law as provided in the United States Constitution, the
Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant
thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant
thereto, and if necessary the law of another state of the United States provided the law of the
other state does not include Sharia Law, in making judicial decisions. The courts shall not
look to the legal precepts of other nations or cultures. Specifically, the courts shall not
consider international law or Sharia Law. The provisions of this subsection shall apply to all
cases before the respective courts including, but not limited to, cases of first impression.81
The amendment thus provides a set of recognized legal sources, which include both federal and
state laws and regulations, and it also provides a set of prohibited legal sources, which include
international or sharia law.
The ballot proposing this amendment explained the amendment’s effect:
This measure amends the State Constitution. It changes a section that deals with the courts of
this state. … 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. …
The law of nations is formed by the general assent of civilized nations. Sources of
international law also include international agreements, as well as treaties.
Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of
Mohammed.82
81
82
Okla. H.J. Res. 1056, 52nd Leg., 2nd Sess. (Okla 2010).
Okla. Exec. Proclamation, filed August 10, 2010, available at http://www.ok.gov/elections/documents/sq_gen10.pdf.
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Question 755 passed with 70% of the vote, and two days later Muneer Awad, a Muslim man,
challenged the constitutionality of the amendment, claiming it would invalidate his last will and
testament, which incorporated aspects of sharia law.83 The federal district court granted a
preliminary injunction, which barred the certification of the election results until the court issued
a decision on the merits of the case.84 Although a decision on the merits of the case is still
pending, the U.S. Court of Appeals for the 10th Circuit affirmed the preliminary injunction in the
case in early 2012.85 Applying the Larson test, the court explained that the state failed to satisfy
the requirements of strict scrutiny and Awad “therefore made a strong showing that he is likely to
prevail in a trial on the merits.”86 The court noted that Larson has not been overturned and
remains good law even if seldomly applied.87 Given the 10th Circuit’s explanation of the proper
analysis of the issues presented in the case, a decision on the merits in Awad appears likely to rest
on a Larson analysis, but potential legal challenges filed in other jurisdictions on similar
provisions may choose to apply other analyses.
Constitutional Amendment Banning Religious Law
Generally (Texas)
In January 2011, the Texas state legislature proposed a state constitutional amendment for voters
to consider that would generally prohibit the use of religious or cultural law in state courts. The
proposed amendment states:
A court of this state shall uphold the laws of the Constitution of the United States, this
Constitution, federal laws, and laws of this state. A court of this state may not enforce,
consider, or apply any religious or cultural law.88
Thus, the Texas proposal does not specifically address sharia law, but rather directs courts not to
rely upon any religious law. This example also provides both a list of positive sources of law and
a list of negative sources of law.
Constitutional Amendment Banning Laws Used or Applied in
Non-U.S. Jurisdictions (Indiana)
The Senate of the state of Indiana proposed an amendment to the Indiana constitution in January
2011 that also does not specifically address sharia. Rather, it bars courts from enforcing laws
from non-U.S. jurisdictions if enforcement would interfere with rights guaranteed by the U.S. or
Indiana Constitutions:
A court may not enforce a law, rule, or legal code or system established and either used or
applied in a jurisdiction outside the states of the United States, the District of Columbia, or
83
Awad, No. 10-1186 (W.D. Okla. filed November 4, 2010).
Id.
85
Awad v. Ziriax, No. 10-6273 (10th Cir. filed January 10, 2012).
86
Id. at 32-33.
87
Id. at 26.
88
Tex. H.J. Res. 57, 82nd Leg., Reg. Sess. (Tex 2011).
84
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the territories of the United States if doing so would violate a right guaranteed by this
constitution or the Constitution of the United States.89
The amendment further instructs that contracts or agreements that provide for the application of
non-U.S. law should be interpreted as necessary to preserve constitutional rights:
Unless a contract or agreement specifically provides that it is to be interpreted in accordance
with a law established and either used or applied in a jurisdiction outside the states of the
United States, the District of Columbia, or the territories of the United States, if:
(1) any contractual provision or agreement provides for the choice of a foreign law to govern
its interpretation or the resolution of any dispute between the parties; and
(2) the enforcement or interpretation of the contractual provision or agreement would result
in a violation of a right guaranteed by this constitution or the Constitution of the United
States;
a court construing the agreement or contractual provision shall amend it to the extent
necessary to preserve the constitutional rights of the parties.90
Also, provisions that could not be amended to comport with constitutional rights would be void,
absent an express choice of law clause:
Unless a contract or agreement specifically provides that it is to be interpreted in accordance
with a law established and either used or applied in a jurisdiction outside the states of the
United States, the District of Columbia, or the territories of the United States, any contractual
provision or agreement incapable of being amended in order to preserve the constitutional
rights of the parties in accordance with subsection (b) is void.91
In addition, the proposal includes similar language relating to venue or forum of particular
disputes.92
Constitutional Amendment Banning Sharia and Reference to Other
State Laws That Apply Sharia (Wyoming)
In January 2011, Wyoming proposed an amendment to its state constitution that would bar courts
from considering international law, sharia law, or the laws of other states if those states’ laws
include sharia law:
When exercising their judicial authority the courts of this state shall uphold and adhere to the
law as provided in the constitution of the United States, the Wyoming constitution, the
United States Code and federal regulations promulgated pursuant thereto, laws of this state,
established common law as specified by legislative enactment, and if necessary the law of
another state of the United States provided the law of the other state does not include Sharia
89
Ind. S.J. Res. 16, 117th Gen. Assembly, 1st Reg. Sess. (Ind. 2011).
Id.
91
Id.
92
Id.
90
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Application of Religious Law in U.S. Courts: Selected Legal Issues
law. The courts shall not consider the legal precepts of other nations or cultures including,
without limitation, international law and Sharia law.93
Wyoming’s proposed amendment may be the broadest reaching of the measures discussed
because it may be interpreted to ban any of a particular state’s laws from being considered,
whether that law relates to sharia law or not, if the state has recognized sharia law to any extent.
Statute Restricting Judicial Determinations from Considering
“Religious Sectarian Law” (Arizona)
In February 2011, Arizona proposed a ban on the use of “religious sectarian law” by its courts:
A court shall not use, implement, refer to or incorporate a tenet of any body of religious
sectarian law into any decision, finding or opinion as controlling or influential authority. …
“Religious sectarian law” means any statute, tenet or body of law evolving within and
binding a specific religious sect or tribe. Religious sectarian law includes sharia law, canon
law, halacha and karma but does not include any law of the United States or the individual
states based on Anglo-American legal tradition and principles on which the United States
was founded.94
Statute Making Support to “Designated Sharia Organizations” a
Felony Offense (Tennessee)
Tennessee introduced a bill that would make knowing provision of material support to a
“designated sharia organization” a felony offense under the state’s criminal laws:
(A) Any person who knowingly provides material support or resources to a designated sharia
organization, or attempts or conspires to do so, shall commit an offense.
(B) A violation of [the preceding paragraph] is a Class B felony, punishable by fine,
imprisonment of not less than fifteen (15) years or both; provided, that if the death of any
person results from a violation of [the preceding paragraph], then the offense is a Class A
felony, punishable by imprisonment for life or imprisonment for life without possibility of
parole.95
In order to be convicted under the bill, a person must know that the organization is a designated
sharia organization that engages or has engaged in certain acts of terrorism defined by state and
federal law.
The bill authorizes the state attorney general to designate organizations as sharia organizations if
the organization knowingly adheres to sharia; engages in, or retains the capability and intent to
93
Wyo. H.J. Res. HJ0008, 61st Leg., 2011 Gen. Sess. (Wyo. 2011).
94
Ariz. H.B. 2582, 50th Leg., 1st Reg. Sess. (Ariz. 2011).
95
Tenn. S.B. 1028, 107th Gen. Assembly, 1st Sess. (Tenn. 2011). (introduced February 17, 2011).
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engage in, particular acts of terrorism defined by state law; and the act of terrorism threatens the
security or public safety of Tennessee residents.96 It defines sharia and sharia organization:
“Sharia” means the set of rules, precepts, instructions, or edicts which are said to emanate
directly or indirectly from the god of Allah or the prophet Mohammed and which include
directly or indirectly the encouragement of any person to support the abrogation, destruction,
or violation of the United States or Tennessee Constitutions, or the destruction of the
national existence of the United States or the sovereignty of this state, and which includes
among other methods to achieve these ends, the likely use of imminent violence. Any rule,
precept, instruction, or edict arising directly from the extant rulings of any of the
authoritative schools of Islamic jurisprudence of Hanafi, Maliki, Shafi’I, Hanbali, Ja’afariya,
or Salafi, as those terms are used by sharia adherents, is prima facie sharia without any
further evidentiary showing;
(2) “Sharia organization” means any two (2) or more persons conspiring to support, or acting
in concert in support of, sharia or in furtherance of the imposition of sharia within any state
or territory of the United States.97
In June 2011, Tennessee enacted a different version of the bill, known as the Material Support to
Designated Entities Act of 2011, which was drafted without reference to sharia.98
Author Contact Information
Cynthia Brougher
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
Acknowledgments
Emily Barbour (Legislative Attorney in the American Law Division), Christopher Blanchard (Analyst in
Middle Eastern Affairs in the Foreign Affairs, Defense, and Trade Division), (name redacted)
(Legislative Attorney in the American Law Division), and Joseph Schoorl (former Law Clerk in the
American Law Division) contributed to the authorship of this report.
96
Id.
Id.
98
See Tenn. Code Ann. §39-13-807 (2011). The enacted language established a felony offense to provide material
support or resources, or attempt or conspire to provide such support or resources to
(1) Any person known by the person providing such material support to resources to be planning or
carrying out an act of terrorism in this state, or concealing or attempting to escape after committing
or attempting to commit an act of terrorism; or
(2) A designated entity; provided, the person must have actual knowledge that the entity is a
designated entity.
Id. The state statute also provides that “religious justification for violence or criminal activity prohibited by this part
shall not be considered a justification or defense….” Tenn. Code. Ann. §39-19-809.
97
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