Bad Moon Rising: The Sharia Law Bans

• Author: Bradford J. Kelley
• Pages: 601-631

Bad Moon Rising: The Sharia Law Bans

I see the bad moon arising. I see trouble on the way.1

INTRODUCTION

Against the backdrop of the ten-year anniversary of the 9/11

terrorist attacks, a heightened interest in the role of Islam in

American society and the subsequent clash of civilizations

remains. Specifically, public concern continues to grow across the

country about the use of Sharia Law, or Islamic Law, within

American courts.2 As a result, well over a dozen state legislatures

have introduced or passed legislation that prohibits or limits the

use of Sharia Law or foreign law in state courts.3 These bills have

taken two distinct forms: Sharia-specific and facially-neutral bills.

Regardless of classification, these legislative efforts have

triggered a number of constitutional concerns, with critics arguing

that the bills violate the Establishment and Free Exercise Clauses

of the First Amendment.4 Critics argue that the laws have a

sectarian purpose and an effect of advancing one religion at the

expense of another and thus fail the Supreme Court’s

jurisprudential test.5 Moreover, these critics argue that the laws

burden the practice of religious faith.6 Indeed, this debate has

undeniably opened a Pandora’s Box of constitutional concerns.

Meanwhile, the bills’ proponents vigorously reject the

accusation that the bills are hostile to Muslims or religious

freedoms.7 They argue that the bills are designed to proactively

safeguard the secular constitutional role of government by

Copyright 2013, by BRADFORD J.KELLEY.

1. CREEDENCE CLEARWATE R REVIVAL, Bad Moon Rising, on GREEN

RIVER (Fantasy Records 1969).

2. See discussion infra Part I. Sharia Law is the Islamic legal code based

primarily on the Quran and the Sunna.

3. See discussion infra Part III; see also Bill Raftery, Bans on Court Use of

Sharia/International Law: Introduced in Mississippi and Kentucky, Advancing in

Florida & South Dakota, Dying in Virginia, GAVEL TO GAVEL (Feb. 13, 2012),

http://gaveltogavel.us/site/2012/02/13/bans-on-court-use-of-shariainternational-law-

introduced-in-mississippi-and-kentucky-advancing-in-florida-south-dakota-dying-

in-virginia/ (listing legislation in 22 state s).

4. See discussion infra Part IV.

5. See discussion infra Part II, IV. For a bill to pass muster, the law must

have a legitimate secular purpose, must not have the primary effect of advancing

or inhibiting religion, and must not further an excessive entanglement of

government and religion. Lemon v. Kurtzman, 403 U.S. 602, 612–14 (1971).

6. See discussion infra Part V.A.

7. See discussion infra Part V.B.

602 LOUISIANA LAW REVIEW [Vol. 73

prohibiting religious influence, specifically that of Sharia Law.8

The proponents, moreover, argue that the bills are aimed at

reinforcing the supremacy of state and federal law. The central

argument for combating the rising influence of Sharia Law and

foreign law is that Americans have a fundamental interest in

deciding what laws American courts should enforce.9 Furthermore,

the case law shows that existing law and judicial procedures are

inadequate in dealing with the growing problem of foreign law,

particularly Sharia Law, in state courts.

Because Muslims represent an increasingly large segment of

the American population, this debate will surely grow in the

coming years.10 This Comment’s purpose is to provide a survey on

the Sharia Law bill debate, including the Sharia-specific and

facially-neutral bills. This Comment seeks to facilitate future

discussions about this increasingly important topic that lies at the

dynamic intersection of religious liberty, equal protection, legal

pluralism, secularism, globalization, and nationalism. Part I

explores the threshold issue underlying the Sharia Law bill debate:

Whether Sharia Law can be defined to allow for a categorical

limitation or prohibition. Part II then explores the growing

influence that Sharia Law has on the world stage, including its

spread to Western countries such as Great Britain and the United

States. Additionally, Part II looks at specific uses of Sharia Law

within American courts. Part III reviews the specific state

legislative efforts to prohibit or limit Sharia Law, including the

neutral legislation. Part IV examines the Religion Clauses of the

First Amendment, including their historical interpretation and

relevant case law. Part V then explores how the Sharia-specific

bills fare under judicial scrutiny in light of the Religion Clauses’

jurisprudential tests. Part V further contends that the Sharia bills

can survive despite judicial hurdles. Part VI then argues that the

superior solution to the Sharia problem is the facially-neutral

foreign law bills, which are sufficiently flexible. This Comment

argues that the facially-neutral legislation does not violate any

constitutional guarantees and is necessary in the absence of proper

judicial procedural safeguards and existing law. Finally, Part VI

readdresses and reinforces the overall argument of this Comment

that remedial and preemptive legislative action should be taken to

address the growing influence of Sharia Law.

8. Id.

9. See discussion infra Part III.A.

10. See Cathy Lynn Grossman, Number of U.S. Muslims to Double, USA

TODAY, Jan. 27, 2011, at 1A (discussing a study showing that the U.S.

population of Muslims is expected to grow substantially in the next 20 years).