More than two dozen state legislatures are currently considering or have enacted laws intended to bar state courts from considering foreign and/or religious laws. From statements by advocates of these laws, it would appear that the real target of such legislation is Sharia law, although most are now written to encompass religious law of other faiths, and “foreign” law.
Where enacted, these bills will infringe upon the long-settled and, for faiths other than Islam, non-controversial practices described above of allowing parties to voluntarily submit their disputes to religious tribunals.
Prohibiting courts from considering religious laws would hamstring all religious communities in a variety of ways. Many civil corporate documents, especially for churches, synagogues and other houses of worship, reference canon law, a book of order or discipline, church manual, or other source of law that explains the powers and limitations of administrators. How can a title company know, for example, if a religious leader signing a deed for a congregation has the authority to do so without looking at the rules and bylaws of the corporation (which for religious corporations will be religious rules or laws)? Many religious communities have alternative dispute resolution provisions in their governing documents, which have spared the courts much expense and time in civil litigation. Would these be unenforceable if courts cannot consider religious laws?
There simply is no evidence that Sharia (or other religious law) is being substituted for U.S. law in American courts. The First Amendment clearly bars government imposition of any religious law. At the same time, the First Amendment protects the right of religious groups to observe their laws in matters of faith.
Legislation barring any consideration of “foreign” or “religious law” in the courts has the effect of potentially marginalizing and discriminating against all religious communities in America who have practiced their religious beliefs and customs peacefully for centuries thanks to the pluralistic and inclusive nature of the U.S. Constitution which affords such freedoms and rights to all American citizens.