Application of Religious Law in U.S. Courts: Selected Legal Issues

Cynthia Brougher
Legislative Attorney

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.


Date of Report: May 18, 2011
Number of Pages: 23
Order Number: R41824
Price: $29.95

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