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CRS-Religious Law in US Courts 5-18-11

CRS-Religious Law in US Courts 5-18-11

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Published by Brian Iverson
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. This report discusses proposals to limit the consideration by domestic courts of religious principles in general, and Islamic law in particular. 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.
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. This report discusses proposals to limit the consideration by domestic courts of religious principles in general, and Islamic law in particular. 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.

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Published by: Brian Iverson on Aug 26, 2012
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08/06/2013

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CRS Report for Congress
Prepared for Members and Committees of Congress
Application of Religious Law in U.S. Courts:Selected Legal Issues
Cynthia Brougher
Legislative AttorneyMay 18, 2011
Congressional Research Service
7-5700www.crs.govR41824
 
 Application of Religious Law in U.S. Courts: Selected Legal IssuesCongressional Research Service
Summary
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 domesticcourts. In one of the most publicized examples, Oklahoma voters definitively approved a stateconstitutional amendment that prohibited state courts from considering “sharia law,” but theamendment has not taken effect pending the outcome of a lawsuit challenging itsconstitutionality. Other states have introduced variations of this limitation, with some generallyprohibiting the use of religious principles in domestic courts.Critics have questioned the constitutionality of several recently proposed or enacted measuresunder the religion clauses of the First Amendment of the U.S. Constitution. The EstablishmentClause prohibits the government from establishing an official religion or showing preferenceamong religions or between religion and non-religion. The Free Exercise Clause prohibits thegovernment from burdening an individual’s ability to exercise his or her religious beliefs if theburden does not arise from neutral law of general applicability but instead infringes upon aparticular set of beliefs. Any bill that would specifically ban sharia may be challenged as adisapproval of Islam in violation of the Establishment Clause or as an infringement on the abilityof Muslims to freely exercise their beliefs under the Free Exercise Clause. Broader proposals thataddress religion generally would not necessarily comport with the First Amendment either,however.This report discusses proposals to limit the consideration by domestic courts of religiousprinciples in general, and Islamic law in particular. It explains the role that religious law andbeliefs may play in U.S. courts and analyzes the constitutional protections for religion in the FirstAmendment. Finally, the report also addresses the role of foreign and international law generallyin U.S. courts and potential unintended consequences of restrictions on the consideration of religious or foreign law.
 
 Application of Religious Law in U.S. Courts: Selected Legal IssuesCongressional Research Service
Contents
Religious Law and Its Application in U.S. Courts........................................................................1
 
Consideration of Religious Law by U.S. Courts.....................................................................2
 
Overview of Sharia...............................................................................................................5
 
First Amendment Issues Related to Prohibitions on Religious Laws in Courts.............................6
 
Restrictions on Free Exercise of Religion..............................................................................6
 
Establishment of Religion.....................................................................................................7
 
Selected Proposed Prohibitions on Application of Religious Law................................................8
 
Avoidance of Matters of Religious Doctrine..........................................................................8
 
Perceived Treatment Toward Different Religious Beliefs.....................................................10
 
Consideration of Foreign Law in Domestic Courts..............................................................13
 
Unintended Consequences...................................................................................................14
 
Appendixes
Appendix. Selected Examples of Pending and Proposed Prohibitions on Application of Religious Laws, Including Sharia...........................................................................................16
 
Contacts
Author Contact Information......................................................................................................20
 
Acknowledgments....................................................................................................................20
 

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