Foreign Invasion: Citing Free Exercise as a Defense for Foreign Law Use in Civil Courts

Recently, South Carolina lawmakers have proposed a bill that banned the use of Sharia Law in Courtrooms, which passed 68-42 in the South Carolina House of Representatives on January 28. Bill H. 3521 “ seeks “to prevent a court of other enforcement authority from enforcing foreign law including, but not limited to, sharia law in this state from a forum outside of the United States of its territories under certain circumstances.” The bill attacks the religious principles of Islam or "sharia" because legislators have a very real fear that Sharia Law could be cited to overrule the current laws we have in place here in the United States, despite the fact that there are currently no known cases of attorneys in South Carolina attempting to use international law or sharia law in South Carolina courts. H. 3521 is not the first bill of its kind; many state legislators have tried to create foreign law bills in order to demonize the Islamic faith. In 2015 there were more than 30 bills proposed against Islam in 17 different states.

This bill reminded me of the Stanley Fish article we read, “Religion and the Liberal State Once Again”. In this article Mr. Fish references a man in New Jersey who used Sharia law as a defense for sexually abusing his wife. According to his lawyers he did not have, “criminal intent because he “was operating under his belief that . . . his desire to have sex when . . . he wanted to was something consistent with his practices” — according to testimony he had said, “You are my wife, I can do anything to you” — and was therefore “not prohibited.” In other words, “I was merely acting on the basis of and at the behest of my Muslim faith and committed no wrong’” (Fish 3-4).

Although there have been no instances of Sharia law being cited as a defense in any of the South Carolina courts they very well could be in the near future.  The biggest issue here is not the use of religious law as a defense in court, but whether or not this bill is unconstitutional. If it is, has this bill violated the Free Exercise Clause of the Establishment Clause? In this case it violates both clauses. The Establishment Clause was created so that government will not privilege one religion over the other, it will also not single out one religion as less than all of the other religions. Bill H. 3521 violates the Establishment clause because it particularly targets Islam however there are other religions that have appealed to their religious laws over the laws of the United States that have been awarded exemptions from secular law.  For example, in Burwell v. Hobby Lobby, Hobby Lobby does not have to provide contraceptives to its employees because that would be a violation of the owner’s religious beliefs. However all other non-religious corporations are compelled to provide contraceptives for their employees. Orthodox Jewish groups have made similar appeals to the man in New Jersey because Jewish law can sometimes come into contact with civil law. The state of South Carolina has in no way demonstrated compelling state interest for creating this law, which has not been narrowly tailored or created in the least restricting way possible- which is required by a bill which wishes to deny such both the Free Exercise and Establishment clauses. H. 3521 also violates the Free Exercise clause because it singles out Islam and prevents individuals from invoking the Free Exercise clause in court. Although religious exemptions do not have to be permitted, everyone should be allowed to petition for an exemption based upon a religious need. Sharia law has specific guidelines for how an individual should dress. This particularly affects women who decide to adhere to this dress cod, which can vary from a hijab (head covering) to a burka (full body covering). When an individual goes to get their license taken in any state or goes to get screened at an airport, they are required to take off their head covering. However, this bill would eliminate these women’s appeal to keep their head coverings on in their license or ID pictures and through airport security, because taking off their head covering would be a large violation of their religious beliefs. 

I think that the CAIR has a better case if they argue that this bill violates the free exercise clause. Although I do not believe that any individual or organization should be exempt from civil law because their religious doctrine opposes it- it is important that these individuals have their day in court and are allowed to present evidence in their defense. H. 3521 would prohibit Free Exercise cases concerning Sharia Law from ever seeing their day in court. If the Free Exercise clause does not guarantee that a court will review an individual or organizations petition for exemption- thus given preference to religion over secular law, then is the Free Exercise clause null and void? Although we may not agree with all of the practices of various religions it is important that courts hear these cases, upon which they may decide if there is enough compelling state interest to permit exemptions or prohibit them.