Religious Law and Religious Courts as a Challenge to the State (National Report for United States of America)

Abstract

This book chapter outlines the changing landscape of religion and religious liberty protections within U.S. law. Written by invitation for the German Congress of the Society of Comparative Law, the chapter primarily functions as an introduction to the historical, constitutional, and statutory law of religious liberty in the United States. It also provides a glimpse into current controversies regarding religious liberty, including anti-Shari’a statutes, faith-based arbitration, conflicts between religious freedom and antidiscrimination norms, and religious rights for corporations.

After first describing the sociological status of religious identity in the United States, the chapter focuses heavily upon the underpinnings of religious liberty in the United States. The chapter provides a crisp overview of the the current legal structures under which religious liberty claims are addressed. A historical framework guides the reader into constitutional and statutory protections for religious liberty at both the federal and state levels. The chapter then examines more carefully the role of religious groups and their rights, with a specific application of marriage and divorce law and anti-Shari’a statutes. Finally, the chapter looks broadly at some areas of jurisdictional overlap between religious groups and individuals, on the one hand, and those of the state and civil law, on the other. We conclude optimistically, believing that America’s history and commitment to religious liberty ultimately provide guidance and reason for hope even as religious liberty is under increasing pressure in the 21st century.

Keywords: religion, religious liberty, religious freedom, constitutional law, marriage, divorce, faith-based arbitration, anti discrimination, Shari'a, religious rights, RFRA, First Amendment, free exercise, establishment