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As best I can discover, the following states have enacted so-called "anti-Sharia" laws or amendments to their state constitutions, and several more have bills of this nature pending in their state legislatures.
* South Dakota
* Oklahoma
* Georgia
* Tennessee
* Alaska
* Arizona
* Arkansas
* Indiana
* Louisiana
* Mississippi
* Nebraska
* South Carolina
* Texas
* Utah
* Wyoming
And apparently, now Kansas.
http://colorlines.com/archives/2011/...haria_law.html
That's a rather unusual pattern; a third of all US states have taken up various ways to impair Sharia Law in our courts, most since January 2011.
These various bills, laws and state constitutional amendments or proposed amendments are not all the same. Some, like Oklahoma, specifically target and prohibit application of Sharia Law in any state court for any reason. Such laws obviously fail Equal Protection tests under the 5th and 14th Amendments.
Most, however, ban any use of "foreign laws and customs","international law" or "laws established outside the United States". Such language at least facially passes an Equal Protection test, but are they constitutional? And if so, are they offensive to any other core principle of US constitutional law?
Here are some reasons (but not all) why these bans will never pass US constitutional muster:
* The US constitution reserves the right to make treaties with foreign nations exclusively to the federal government. (US constitution, Article II, Section II.) In additon to treaties that contemplate taxes, tarrifs, etc., the US is signatory to various international treaties dealing with child custody, inheritance, and other family law matters.
Any state court which failed to recognize the validity of a foreign-made child custody order would not only offend the US constitution, it would also imperil the rights of American parents, who would have less hope of enforcing their custody orders made here in foreign courts. There is also a good argument to be made that treaties with Native American tribes would be impaired by such bans, and since those treaties are federal government-made, these bans would fail under the Supremacy Clause. (Article VI, Paragragh II.)
* The US constitution protects the rights of individuals and businesses to make contracts. (Article I, Section X, among others.) This protection is not absolute, of course, but in general a contract will be respected as long as its provisions are legal. However, in states with "anti-foreign laws and customs" bans, a contract provision that called for arbitration between a US person or company and a foreign one is in grave doubt. (Like cannon law for Catholics and halakhah for Jews, Sharia Law has provisions for arbitration of certain disputes between adherents to Islam in a religious court.) To my way of thinking, there is no federal constitutional means by which civil arbitration can be constitutional or legal in any state which prohibits religious arbitration -- and many existing contracts will be in peril as a result.
This would impair huge market sectors -- for example, almost all insurance companies lay off risk on secondary markets, called reinsurers, and most secondary markets are foreign. Arbitration is key to all such contracts and if a US company is legally impaired from entering any contract which requires it, it is doubtful they could continue to do business with reinsurers at all.
I am comfortable predicting that, by creating ambiguity over contracts with foreign persons, every state with such "foreign laws and customs" bans has harmed its own business community, as the businesses situated there are far less able to fix rights and duties by contract as compared to businesses situated in other US states or in foreign countries that compete with them.
* Use of foreign laws and customs as evidence in US courts. If a state court may not "recognize" any foreign law or custom, can state judges permit evidence of such if that evidence bears on motive or intent? No one knows, of course, how the courts would interprete these laws and amendments if ever they are permitted to become effective, but my reading of the plain language of at least some proposed state constitutional amendments and laws is "no".
So, in family court, no one may show that a spouse does not keep kosher or request that doing so be made mandatory in a child custody agreement. In probate court, a will may not be contested by use of evidence that involves any Catholic religious practice. In fact, it is not even clear whether such a will, contract or judgment provision now in existence would remain effective under these "foreign laws and customs" bans.
So if it matters to you that your former spouse raise your children in a certain faith, you may be unable to legally obligate your spouse on this point if any anti-Sharia laws, etc., go into effect in a US state. And clearly, the most nonsensical of all results would be to create a barrier against any evidence of religious belief that is deemed "foreign" in a criminal proceeding, when that evidence bears directly on the defendant's alleged motive for committing the crime with which he is charged.
I am also unable to see how, if these laws, etc. were effective, any defendant could exclude testimony by his cleric if that defendant was Muslim. To pass the Equality tests, this would mean none of us could keep out testimony by our spiritual leaders, such as pastors, priests, rabbis, etc. Any attempt to limit this to Muslim defendants and no others clearly fails all sots of constitutional tests.
* When Sharia Law in the United States is properly viewed, for legal purposes, solely as a collections of religious practices, any attempt to burden such religious practices will be unconstitutional here unless the state can show (a) it had a compelling reason to outlaw or burden adherents of this faith; and (b) no less burdensome means was possible. Any law or state constitutional amendment has to pass the strictest possible constitutional scrutiny. I can count on one hand the number of state laws which have survived this kind of review by the US Supreme Court.
Religious freedom in the US is EXTREMELY well-protected, and states may burden that freedom only in the most extreme cases (child neglect or abuse, etc.) and then only by the least restrictive means possible. Clearly, an outright ban on all the religious practices of Islam on the grounds that they are "foreign" is doomed for failure. (US constitution, Amendment I.)
Furthermore, by elevating some religions as "nonforeign" above others, all these states move in a completely unconstitutional fashion towards establishing a government-sanctioned religion, and the bans they've adopted or are considering will fail on this ground as well.
I am 100% certain no state constitutional amendment or law attempting to prevent the use of Sharia Law in any state court proceeding that has been drafted to date will pass US constitutional muster. I am also 100% that such a task is an impossibility, and none ever will.
That's a whole lot of time, money and energy wasted on a snipe hunt inspired by ignorance and bigotry. I am absolutely bumfuddled as to why, in this economy, the citizens of these states are not outraged that their lawmakers are wasting time they could be spending on jobs, business development or the like trying to prevent harm which MAY flow from an unseen threat no one seriously expects will ever materialize in the US.
If anyone mistakenly thinks a charge of murder, e.g., could successfully be defended in any US state court merely by asserting an "honor killing" defense under Sharia Law, which is a perversion of that body of religious doctrine anyway, they could not possibly be more wrong.
* South Dakota
* Oklahoma
* Georgia
* Tennessee
* Alaska
* Arizona
* Arkansas
* Indiana
* Louisiana
* Mississippi
* Nebraska
* South Carolina
* Texas
* Utah
* Wyoming
And apparently, now Kansas.
http://colorlines.com/archives/2011/...haria_law.html
That's a rather unusual pattern; a third of all US states have taken up various ways to impair Sharia Law in our courts, most since January 2011.
The purpose of this thread is ONLY to focus on the US constitutional issues these proposed laws and state constitutional amendments present.
These various bills, laws and state constitutional amendments or proposed amendments are not all the same. Some, like Oklahoma, specifically target and prohibit application of Sharia Law in any state court for any reason. Such laws obviously fail Equal Protection tests under the 5th and 14th Amendments.
Most, however, ban any use of "foreign laws and customs","international law" or "laws established outside the United States". Such language at least facially passes an Equal Protection test, but are they constitutional? And if so, are they offensive to any other core principle of US constitutional law?
Here are some reasons (but not all) why these bans will never pass US constitutional muster:
* The US constitution reserves the right to make treaties with foreign nations exclusively to the federal government. (US constitution, Article II, Section II.) In additon to treaties that contemplate taxes, tarrifs, etc., the US is signatory to various international treaties dealing with child custody, inheritance, and other family law matters.
Any state court which failed to recognize the validity of a foreign-made child custody order would not only offend the US constitution, it would also imperil the rights of American parents, who would have less hope of enforcing their custody orders made here in foreign courts. There is also a good argument to be made that treaties with Native American tribes would be impaired by such bans, and since those treaties are federal government-made, these bans would fail under the Supremacy Clause. (Article VI, Paragragh II.)
* The US constitution protects the rights of individuals and businesses to make contracts. (Article I, Section X, among others.) This protection is not absolute, of course, but in general a contract will be respected as long as its provisions are legal. However, in states with "anti-foreign laws and customs" bans, a contract provision that called for arbitration between a US person or company and a foreign one is in grave doubt. (Like cannon law for Catholics and halakhah for Jews, Sharia Law has provisions for arbitration of certain disputes between adherents to Islam in a religious court.) To my way of thinking, there is no federal constitutional means by which civil arbitration can be constitutional or legal in any state which prohibits religious arbitration -- and many existing contracts will be in peril as a result.
This would impair huge market sectors -- for example, almost all insurance companies lay off risk on secondary markets, called reinsurers, and most secondary markets are foreign. Arbitration is key to all such contracts and if a US company is legally impaired from entering any contract which requires it, it is doubtful they could continue to do business with reinsurers at all.
I am comfortable predicting that, by creating ambiguity over contracts with foreign persons, every state with such "foreign laws and customs" bans has harmed its own business community, as the businesses situated there are far less able to fix rights and duties by contract as compared to businesses situated in other US states or in foreign countries that compete with them.
* Use of foreign laws and customs as evidence in US courts. If a state court may not "recognize" any foreign law or custom, can state judges permit evidence of such if that evidence bears on motive or intent? No one knows, of course, how the courts would interprete these laws and amendments if ever they are permitted to become effective, but my reading of the plain language of at least some proposed state constitutional amendments and laws is "no".
So, in family court, no one may show that a spouse does not keep kosher or request that doing so be made mandatory in a child custody agreement. In probate court, a will may not be contested by use of evidence that involves any Catholic religious practice. In fact, it is not even clear whether such a will, contract or judgment provision now in existence would remain effective under these "foreign laws and customs" bans.
So if it matters to you that your former spouse raise your children in a certain faith, you may be unable to legally obligate your spouse on this point if any anti-Sharia laws, etc., go into effect in a US state. And clearly, the most nonsensical of all results would be to create a barrier against any evidence of religious belief that is deemed "foreign" in a criminal proceeding, when that evidence bears directly on the defendant's alleged motive for committing the crime with which he is charged.
Should ANY of these laws, etc. take effect, even temporarily, there will be an instantly-created cottage industry for lawyers as to which religious practices are "foreign" and which are not.
I am also unable to see how, if these laws, etc. were effective, any defendant could exclude testimony by his cleric if that defendant was Muslim. To pass the Equality tests, this would mean none of us could keep out testimony by our spiritual leaders, such as pastors, priests, rabbis, etc. Any attempt to limit this to Muslim defendants and no others clearly fails all sots of constitutional tests.
* When Sharia Law in the United States is properly viewed, for legal purposes, solely as a collections of religious practices, any attempt to burden such religious practices will be unconstitutional here unless the state can show (a) it had a compelling reason to outlaw or burden adherents of this faith; and (b) no less burdensome means was possible. Any law or state constitutional amendment has to pass the strictest possible constitutional scrutiny. I can count on one hand the number of state laws which have survived this kind of review by the US Supreme Court.
Religious freedom in the US is EXTREMELY well-protected, and states may burden that freedom only in the most extreme cases (child neglect or abuse, etc.) and then only by the least restrictive means possible. Clearly, an outright ban on all the religious practices of Islam on the grounds that they are "foreign" is doomed for failure. (US constitution, Amendment I.)
Furthermore, by elevating some religions as "nonforeign" above others, all these states move in a completely unconstitutional fashion towards establishing a government-sanctioned religion, and the bans they've adopted or are considering will fail on this ground as well.
I am 100% certain no state constitutional amendment or law attempting to prevent the use of Sharia Law in any state court proceeding that has been drafted to date will pass US constitutional muster. I am also 100% that such a task is an impossibility, and none ever will.
That's a whole lot of time, money and energy wasted on a snipe hunt inspired by ignorance and bigotry. I am absolutely bumfuddled as to why, in this economy, the citizens of these states are not outraged that their lawmakers are wasting time they could be spending on jobs, business development or the like trying to prevent harm which MAY flow from an unseen threat no one seriously expects will ever materialize in the US.
If anyone mistakenly thinks a charge of murder, e.g., could successfully be defended in any US state court merely by asserting an "honor killing" defense under Sharia Law, which is a perversion of that body of religious doctrine anyway, they could not possibly be more wrong.
No matter how any American worships (or not) God, we are all bound to adhere to OUR civil law or pay the consequences for violating it.
