Justice360° - Legal Bulletin:  Anti-Sharia Legislation

As Islamophobic rhetoric heats up, many politicians across the country are passing or are attempting to pass anti-sharia legislation as a way to combat some perceived threat of Muslims imposing sharia law in the United States. Approximately 15 states have considered or are considering such legislation. The proposed legislation widely vary in language and severity, but almost all of them are constitutionally questionable.

Oklahoma, the first state to pass such legislation through a voter-approved state constitutional amendment, explicitly prohibited state courts from considering Islamic law in any rulings they made. In December of 2010 the law was challenged on constitutional grounds and was overturned by a Federal Judge who ruled that the law violated the First Amendment.

In March of this year, legislators in Tennessee introduced a radical bill that stated that "the knowing adherence to sharia and to foreign sharia authorities is prima facie evidence of an act in support of the overthrow of the United States government” and would make "material support" for Islamic law punishable by 15 years in prison. Shortly after the bill’s introduction and after coming under sharp criticism from Muslim and civil liberty organizations, the Tennessee legislature amended the bill to remove all references to Islam or Sharia law. The bill as read to day would allow Tennessee to prosecute those who offer financial or material support to known terrorist entities.

Michigan also recently joined the anti-sharia legislation crowd when Republican state representative Dave Agema introduced a bill in August that would ban the implementation of foreign laws. Although the bill does not explicitly refer to Sharia law, Agema stated that the bill protects the "vast majority" of Muslims who "come to this country to get away from Sharia." Fellow state representative Rashida Tlaib, the first Muslim woman to serve in the Michigan Legislature, is opposing the bill on the basis that it is unnecessary, can have far reaching unintended consequences and would fuel anti-Muslim paranoia. Civil liberty organizations such as Council on American Islamic Relations (CAIR), ACLU, and NAACP support Ms. Tlaib in her opposition against the bill.

Other states that have jumped onto the anti-Sharia law wagon include Florida, Alabama, Missouri, South Dakota and Nebraska. The language for most of these laws comes from one source, David Yershalmi, the founder of the political organization Society of Americans for National Existence (SANE). Mr. Yershalmi and other proponents of anti-Sharia law claim that court decisions over the past three decades have shown that Sharia law is creeping into the legal system. Most of those cases involve contracts where the parties have agreed to arbitrate according to Sharia law or complex divorce and custody issues. Regardless, American courts are obligated to give supremacy to U.S. laws and will not give credence to foreign laws that contravene the public policy of the respective states. The cases that anti-Sharia law proponents point to in support of their position have generally upheld these principle and the rare cases that have strayed have been overturned on appeal.

Considering how varying the language of these laws can be, it is difficult to make one legal coherent argument against all of them. The most obvious constitutional concern is that the laws may implicate the Establishment Clause and the Free Exercise Clause of the First Amendment which, respectively, prohibit the government from excessive entanglement with religion and prohibit it from restricting the exercise of it. Muslims living in states that are considering anti-Sharia measures should continue to educate their non-Muslim neighbors about Islam, and contact their district representative to express concern that such legislation could infringe on their constitutional rights.

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