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Contracting into Religious Law: Anti-Sharia Enactments and the Free Exercise Clause

49 Pages Posted: 12 Feb 2012  

Muhammad Elsayed

affiliation not provided to SSRN

Date Written: February 11, 2012


Muneer Awad, an American-Muslim resident of Oklahoma, wrote his last will and testament. However, unlike the wills of most Americans, his might not be probated by the courts of Oklahoma, because it is based on his Muslim faith. Under Oklahoma’s “Save our State Amendment,” state courts are prohibited from considering the legal precepts of foreign nations or religions. This amendment, which was overwhelmingly approved by voters in 2010, is part of a recent wave of anti-Sharia enactments targeting foreign and religious laws, many of which particularly target Islamic law (Sharia).

While these enactments have yet to receive much judicial scrutiny because of their novelty, they have created a firestorm of public controversy and galvanized both supporters and opponents. The American Bar Association (ABA) also joined the controversy, adopting a resolution opposing these enactments as unconstitutional. This drew accusations from some supporters of anti-Sharia enactments that the ABA “has decided to undertake the fight for Sharia law.” As courts around the country are likely to soon consider the constitutionality of these enactments, a deeper understanding of the Religion Clauses of the First Amendment and their application to these enactments becomes increasingly important. Specifically, this Comment addresses the implications of anti-Sharia enactments for parties who incorporate religious laws into their contracts and seek to introduce extrinsic evidence to explain their intent when a dispute arises over the parties’ intent or the meaning of a contract term. Although most anti-Sharia enactments target Sharia law overtly or covertly, they also have a major impact on certain practices among some Jewish American communities, and thus this Comment explores the adverse consequences for both religious groups.

Ultimately, this Comment argues that anti-Sharia enactments that target one religion or religion in general violate the Free Exercise Clause. These enactments prohibit parties from voluntarily incorporating contract terms based on their religious beliefs even where courts would be able to enforce those terms without violating the Establishment Clause. Furthermore, anti-Sharia enactments that prohibit courts from enforcing contracts or arbitration decisions based on laws that do not provide the same rights guaranteed by the Constitution violate the Establishment Clause by requiring courts to pass judgment on matters of religious doctrine. However, religious communities that seek to govern their private transactions by religious laws can avoid the adverse effects of anti-Sharia enactments by employing more specific contract terms and increasing their reliance on religious arbitration panels. Courts can also avoid the constitutional problems created by anti-Sharia enactments by interpreting them narrowly so as to only prohibit courts from applying religious laws in a manner that violates the Establishment Clause.

Part I of this Comment provides a background to this topic by giving an introduction to Sharia law, surveying the different forms that anti-Sharia enactments have taken, and addressing the different contexts in which foreign and religious laws may be applicable in American courts. Part II explains the Religion Clauses of the First Amendment. Part III analyzes the constitutionality of anti-Sharia enactments under the Religion Clauses. Part IV discusses why the limited consideration of religious laws within the framework of the “neutral principles of law” approach as applied to contracts incorporating religious laws does not offend the Establishment Clause. Finally, Part V proposes three solutions to the constitutional problems created by anti-Sharia enactments and discusses limitations on those solutions.

Keywords: Sharia, Shariah, anti-Sharia, anti-Shariah, free exercise clause, Awad v. Ziriax

Suggested Citation

Elsayed, Muhammad, Contracting into Religious Law: Anti-Sharia Enactments and the Free Exercise Clause (February 11, 2012). George Mason Law Review, Vol. 20, No. 3, 2012. Available at SSRN:

Muhammad Elsayed (Contact Author)

affiliation not provided to SSRN ( email )

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