Daniel Mach, director of the American Civil Liberties Union’s program on Freedom of Religion and Belief, and Jamil Dakwar, director of the ACLU’s Human Rights program, recently co-authored an article on the Huffington Post attacking legislative efforts to prohibit the application of foreign laws inconsistent with the rights granted by the U.S. and state constitutions or state public policy.
The article posits a series of disjointed, hypothetical misapplications of the legislative efforts to prevent sharia from encroaching into our legal system. Yet, the authors cite no actual examples of misapplications of laws already passed and in force, in Tennessee, Louisiana, and Arizona. The authors fail to distinguish this American Laws for American Courts (ALAC) legislation from other legislative efforts, such as the Oklahoma constitutional amendment, which do not explicitly reference the protection of constitutional rights and public policy in prohibiting application of sharia or foreign law.
Further, the authors contend that these laws, explicitly protecting established constitutional rights, are superfluous because the First Amendment already protects these rights, and then allege that these laws violate the religious freedom granted by the First Amendment. The authors thereby dangerously conflate the judiciary’s interpretation and enforcement of secular law with interpretation and enforcement of religious doctrine. The freedom of religion and establishment clauses of the First Amendment do not address the application of foreign law, including sharia, in American courts, and, as demonstrated below, have not been applied to prevent such application.
Additionally, American courts have repeatedly held that freedom of religion does not require the judiciary to void secular laws which may incidentally conflict with religious doctrine, and that the First Amendment prohibits the judiciary from interpreting or enforcing religious doctrine. For example, in the case of S.D. v. M.J.R., the New Jersey Superior Court of Appeal reversed a trial court judge who did not find sexual assault to have been proven when a husband admitted forcing his wife to engage in sex, because the husband lacked criminal intent as he was a Muslim, and sharia, as described by an imam, mandated that a wife submit to her husband’s sexual advances. The New Jersey appellate court cited several U.S. Supreme Court decisions that held that freedom of religion does not include violating criminal laws, including Reynolds v. United States and Cleveland v. United States regarding polygamy, and Employment Div., Dep’t of Human Res. of Oregon v. Smith regarding smoking peyote, even when religious doctrine permits or mandates the prohibited practice. The U.S. Supreme Court, in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church and its progeny, have also consistently held that deciding disputes over religious doctrine violates the establishment clause of the First Amendment.
Most egregiously, the title of the article, “Anti-Sharia Law: A Solution In Search Of A Problem,” suggests that the enforcement of sharia law in the United States is simply not a problem worth addressing. The authors completely ignore dozens of published state appellate decisions in which American courts addressed litigants who demanded the enforcement of sharia, and on many occasions succeeded.