Can state laws banning sharia be constitutional under the Establishment and Free Exercise Clauses?
Executive summary
State “anti‑Sharia” laws and proposed federal bills seek to bar courts or officials from applying Sharia or foreign religious law; courts have invalidated at least one such state amendment for singling out Islam under the Establishment Clause (see federal appeals decision blocking Oklahoma’s measure) [1]. Civil‑liberties groups and legal commentators say many of these laws are unnecessary, target Muslims, and raise First Amendment and equal‑protection concerns [2] [3].
1. What these bans actually do — and who writes them
Most modern measures are framed as “foreign law” or “American Laws for American Courts” statutes that prohibit state courts from enforcing foreign or religious laws when they conflict with constitutional or state public‑policy norms; model language originated with a network tied to attorney David Yerushalmi and the Center for Security Policy, even when the bills avoid naming Islam explicitly [3]. Proponents present the laws as protective: preventing courts from enforcing rights‑inconsistent foreign judgments or arbitration based on Sharia [4] [5].
2. Constitutional challenge under the Establishment Clause
Courts have found singling out Islam likely violates the Establishment Clause. A federal appeals court upheld a ruling blocking Oklahoma’s constitutional amendment because it treated Islam unfavorably, concluding the measure likely breached the First Amendment’s prohibition on government favoring or disfavoring religion [1]. Legal advocates argue that any law that explicitly or effectively targets one religion runs a high risk of being struck down for that reason [2].
3. Free Exercise implications and competing frames
Supporters claim bans protect neutral constitutional order and individual rights by preventing foreign religious norms that conflict with U.S. law from being imposed through private arbitration or foreign judgments [4] [5]. Critics counter that laws singling out Sharia stigmatize Muslim worship and thereby chill religious exercise; the ACLU and other civil‑liberties groups say measures that single out Islamic law violate both Free Exercise and Establishment principles by treating one faith as suspect [2] [1].
4. How courts assess neutrality and purpose
Because the First Amendment turns on government purpose and effect, courts look beyond facial language to legislative history and application. Observers note that many drafters acknowledged an anti‑Islam motive and that some legislators explicitly invoked Sharia even when bills used neutral “foreign law” wording—evidence courts can use to infer discriminatory intent [3] [6]. Where motive appears discriminatory, Establishment and Free Exercise challenges succeed [1].
5. Practical and doctrinal weaknesses of bans
Empirical reviews find little evidence that U.S. courts were applying Sharia in ways that undermined constitutional rights; commentators say prior cases rejecting the influence of Sharia weaken the factual need for sweeping bans [7]. The American Bar Association and other legal groups have characterized such laws as unnecessary and potentially harmful to courts’ ability to honor international commitments and resolve cross‑border disputes [8] [2].
6. Recent federal proposals and political dynamics
New federal bills like the “No Sharia Act” and other measures introduced by members of Congress and Senate sponsors state they would bar enforcement of judgments or contracts grounded in Sharia when they conflict with constitutional rights [4] [9] [5]. These proposals are presented by sponsors as reaffirming constitutional supremacy; critics warn they will revive the same constitutional and civil‑liberties disputes that sank earlier state measures [4] [5].
7. Alternative lawful approaches courts have used
Rather than blanket bans, courts already refuse to enforce foreign judgments or contractual clauses that violate fundamental U.S. public policy or constitutional rights; existing doctrines guard against enforcing anything that would, for example, permit discrimination or deprive someone of constitutional protections [8]. Legal commentators and groups argue this existing framework makes special anti‑Sharia legislation redundant and constitutionally risky [2] [7].
8. Bottom line for constitutionality
Available sources show courts will deem laws unconstitutional when they single out Islam or reveal discriminatory intent; neutral laws facially prohibiting enforcement of any foreign rule that violates constitutional rights are harder to challenge on their face but still attract skepticism when legislative history or advocacy shows an anti‑Muslim aim [1] [3]. Supporters emphasize constitutional supremacy as justification; opponents point to established First Amendment doctrine and prior rulings blocking state bans as decisive counterarguments [4] [1].
Limitations and unanswered questions: the sources document litigation and policy debates up through recent federal proposals but do not provide a comprehensive, current catalog of all court rulings or how future courts will rule on the newest federal bills—those outcomes remain to be determined in litigation (not found in current reporting).