What legal definitions do US state statutes use when referring to sharia or foreign law?
Executive summary
State statutes that target “Sharia” typically define the phrase indirectly — not as a detailed set of Islamic legal rules but as “foreign law,” “religious law,” or “any law…derived from a jurisdiction outside the United States,” language crafted to be facially neutral while functionally singling out Islamic law in origin and intent [1] [2] [3]. Those statutes sit alongside longstanding legal doctrines that allow voluntary religious arbitration and the application of foreign law in limited contexts, prompting legal challenges and objections from bar associations and religious communities [3] [4] [5].
1. How statutes actually define “Sharia” — indirect and broad
Many state bills and federal proposals avoid the word “Sharia” and instead define “foreign law” or “foreign legal code” expansively — for example as “any law, legal code, or system derived from a jurisdiction outside the United States or its territories, including religious law when invoked as a substitute for State or Federal law,” language used in recent federal draft bills and mirrored in state templates [1] [6]. That drafting choice reflects the tactical shift after courts struck down laws that explicitly named Sharia, replacing explicit targeting with broad prohibitions on “foreign” or “religious” law to withstand constitutional scrutiny on their face [2] [7].
2. Model statutes, origin stories, and political intent
The model statutes behind many state measures — often labeled “American Laws for American Courts” — trace to organized campaigns to limit judicial consideration of foreign or religious law; critics and researchers identify David Yerushalmi and allied groups as influential in promoting these templates, and scholars say the templates were purposefully designed both to be copied across states and to provoke questions about Sharia specifically [8] [2]. Public-facing text emphasizes neutrality by prohibiting any foreign law that would contravene constitutional rights, but proponents’ statements and early drafts reveal an explicit focus on Sharia [8] [2].
3. What these definitions mean in practice — arbitration and narrow applications
Despite statutory bans or restrictions, U.S. courts have long enforced voluntary religious arbitration awards under the Federal Arbitration Act and have applied foreign law in narrow contexts such as recognizing a marriage validly performed abroad; courts refuse, however, to enforce any foreign or religious rule that conflicts with constitutional rights or public policy [3] [4] [5]. Legal commentary therefore draws a distinction between private observance or arbitration under religious norms — which can be judicially recognized when voluntary and not discriminatory — and any effort to supplant state or federal law with a separate, enforceable religious legal system [4] [5].
4. Legal opposition and constitutional concerns
Professional and civil-liberty organizations, including the American Bar Association, have warned that blanket bans on “foreign” or “religious” law are unnecessary and risk collateral harm to religious minorities who rely on arbitration and private contracts; the ABA and other commentators argue existing safeguards already prevent enforcement of foreign rules that violate constitutional protections [3] [4]. Critics also contend that facially neutral “foreign law” definitions mask discriminatory intent and can chill religious practice or interfaith arbitration historically used by Jewish, Christian, and Muslim communities [2] [8] [9].
5. Judicial outcomes and unresolved legal contours
Courts have struck down or narrowed laws that explicitly mentioned Sharia, prompting legislative rewording to broader “foreign law” prohibitions; at the same time federal constitutional principles — supremacy of the Constitution and the Establishment and Free Exercise Clauses — remain the controlling tests for whether any statute or court action improperly privileges or excludes religious legal practice [3] [4]. Reporting and legal scholarship show a gap between legislative rhetoric and on-the-ground legal practice: there is no judicial recognition of Sharia as a parallel civil or criminal jurisdiction that overrides U.S. law, even where parts of foreign law can inform discrete issues like marital status or torts occurring abroad [9] [5].
6. Competing narratives and the political stakes
Supporters frame these definitions as necessary protections of constitutional rights and women’s or children’s safety; opponents see them as political instruments that stigmatize Muslims and threaten religious arbitration across faiths — both the policy framing and the model-law origin stories are documented in legal analyses and advocacy reports, making clear that statutory definitions do legal work and political signaling simultaneously [1] [8] [2].