Constitutional prohibitions and accommodations Because of the
Establishment Clause of the
United States Constitution, no religious tradition can be established as the basis of laws that apply to everyone, including any form of sharia, Christian
canon law, Jewish
halakha, or rules of
dharma from Hinduism and Buddhism. Laws must be passed in a secular fashion, not by religious authorities. The
Free Exercise Clause allows residents to practice any religion or no religion, and there is often controversy about
separation of church and state and the balance between these two clauses when the government does or does not accommodate any particular religious practice (for example
blue laws that require stores to be closed on Sunday, the Christian holy day). Direct consultation of any religious law, including any form of sharia, is relatively rare in U.S. jurisprudence and is generally limited to circumstances where the government is accommodating the religious belief of a specific person. This occurs mainly in matters of
arbitration and
family law. For example, the law may allow parties to submit a dispute for binding arbitration to a mutually agreed-upon religious authority; mandatory arbitration by a specified or mutually-agreed arbitrator is also a common clause in commercial and labor union contracts. Couples with the same religious beliefs may wish to construct marriage contracts and conduct divorces in concordance with those beliefs, and people may also wish to arrange
wills and other financial matters in accordance with their own religious principles. If presented as evidence, devotion to peaceful religious principles, along with many other aspects of personality, is commonly considered when judging the character of a person before the law, for example during
sentencing or a
parole hearing. Despite the Free Exercise Clause, the 1878 Supreme Court decision in
Reynolds v. United States (which concerned the conflict of the
Mormon practice of polygamy with anti-bigamy laws) affirmed that secular laws still apply when they contradict religious practices, unless a superseding law establishes a right to a religious accommodation. The
American Bar Association has opposed legislation banning foreign law or sharia as unnecessary, on the grounds that existing safeguards against foreign law already protect against rules that are contrary to American foreign policy, including discrimination on the basis of gender and religion.
Background of controversy In June 2009, a family court judge in
Hudson County, New Jersey denied a restraining order to a woman who testified that her husband, a Muslim, had raped her. The judge said he did not believe the man "had a criminal desire to or intent to sexually assault" his wife because he was acting in a way that was "consistent with his practices." A state appeals court reversed his decision. Advocates of the ban in the U.S. have cited this case as an example of the need for the ban. As of 2014, more than two dozen U.S. states have considered measures intended to restrict judges from consulting sharia law. Arizona, Kansas, Louisiana, South Dakota, Tennessee, North Carolina, and Alabama have "banned sharia", i.e., passed foreign law bans. The law was then updated to include all foreign or religious laws. The law was challenged by an official of the
Council on American-Islamic Relations. In November 2010 a federal judge ruled the law to be unconstitutional and blocked the state from putting it into effect. The court found the ban had the potential to do harm to Muslims. The invalidation of a
will and testament using sharia instructions was an example. That ruling and
injunction were upheld by the
Tenth Circuit Court of Appeals on January 10, 2012. Missouri also passed a measure banning foreign law in 2013, but Governor
Jay Nixon vetoed the bill "because of its potential impact on international adoptions." and Alabama, where voters passed an Amendment to the State Constitution (72% to 28%) to "ban sharia" in 2014.
Supporters David Yerushalmi has been called the founder of the movement in America and is described by
The New York Times as "working with a cadre of conservative public-policy institutes and former military and intelligence officials" According to him, the purpose of the anti-sharia movement is not to pass legislation banning sharia law in the courts but "to get people asking this question, ‘What is Shariah?’”. During the lead-up to
Newt Gingrich's presidential campaign 2012, he described sharia law as a "mortal threat" and called for its ban throughout America. Sarah Palin has been quoted as saying that if shariah law “were to be adopted, allowed to govern in our country, it will be the downfall of America.” some
Republican members of the
United States Congress endorsed a new memorandum, based on a
Center for Security Policy (CSP) report,
Shariah: The Threat To America.
Analysis A 2013 report by the
Brennan Center for Justice warned that the bans may have the unintended effects of invalidating prenuptial agreements and court decisions made in other states where arbitrators may have taken into account Islamic, Jewish, or Christian legal norms. Randy Brinson, the president of the Christian Coalition of Alabama, criticized the ban in Alabama, calling it "redundant and a waste of time". According to
Sadakat Kadri, the ban on sharia laws notwithstanding, "the precepts of Islamic law ... have judicial force in the United States already", among Muslims who have had a dispute settled by Muslim conciliators. The 1925
Federal Arbitration Act allows Muslims, Christians, Jews, etc. to use religious tribunals to arbitrate disagreements and "the judgments that result are given force of law by state and federal courts". The statute "preempts inconsistent state legislation", such as laws to ban sharia. While the US Congress could in theory repeal the act, it could not ban arbitration by Muslims while leaving other religious conciliators free to continue their work. "Any reform would have to impact equally on all faith communities, and it is not only Muslims who would object if federal legislators presumed to do that." ==Canada==