In the past year a number of state legislatures have considered bills and ballot questions impacting Shari`a, the holy law of Islam. While each law calls for different treatment of Shari`a, all Anti-Shari`a laws present real concerns about the legal future of Muslim citizens. Some laws, for example the amendment to the Oklahoma Constitution, would prohibit courts from interpreting or applying Shari`a, or any other foreign laws. Other laws, such as the Tennessee law outlawing the practice of Shari`a entirely, associate the holy law with terrorist organizations or activity. Such laws claim that one of the stated aims of Shari`a is to replace both the federal and state constitutions with Muslim law.

Anti-Shari`a laws will have a profound impact on many Muslims as the Shari`a contains sacred laws by which many believers order their lives. These include laws governing marriage and the drafting of wills and other inheritance instruments. Anti-Shari`a laws like the Oklahoma Amendment are troubling because, if enacted, the laws would limit the ability of Muslims to practice their religion. Furthermore, the laws do not exclude any other religious law. This singles out Islam in a problematic fashion.

Laws similar to the Tennessee law are also troubling for singling out Shari`a, but additionally for the potential impact on specific religious practices. For example, the Zakat, one of the Five Pillars of Islam, requires Muslims to contribute a portion of their earnings to charity. Many Muslims donate to local Islamic groups, but if these organizations are allegedly linked to terrorist activity under the new anti-terrorism law passed in June, it may stigmatize worshipers for contributing to terrorist organizations. While the law purports not to criminalize the “peaceful practice of any religion[,]” it is unlawful to provide “material support or resources . . . to designated shari`a organizations . . . or to known shari`a-jihad organizations with the intent of furthering their criminal behavior.”  39 Tenn. Code Ann. §§ 903-4 (2011). This law makes distinguishing between providing material support and performing the responsibility of the Zakat difficult. Material support under the Tennessee Annotated Code includes giving currency. 39 Tenn. Code Ann. §§ 903 (2011). The law further defines a “shari`a organization” broadly as “two (2) or more persons conspiring to support, or acting in concert in support of, shari`a.” 39 Tenn. Code Ann. §§ 904 (2011). Under this definition, a local mosque or Islamic group could easily be categorized as a “shari`a organization” and the analysis for violations under the new law would turn on the donor’s intent. If this were the case, these laws would contradict a long held sacred practice and go further than simply favoring non-religion; they would actively inhibit Muslims religious observance.

Under the United States Constitution the government may not infringe upon one’s right to exercise religion. U.S. CONST. AMEND. I. The Supreme Court stated that a law violates the free exercise clause if it “discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). Neutral laws with an incidental burden on religious practice are deemed permissible, while laws that target religious practice for its religious nature must be narrowly tailored and justified by a compelling state interest. Id. at 531. The Western District of Oklahoma found that Oklahoma’s constitutional amendment did specifically target Islam for its religious nature, as Shari`a was the only foreign body of law named. Awad v. Ziriax, 754 F. Supp. 2d 1298 (W.D. Okla. 2010). Because the amendment singled out Shari`a as a religious practice, the court held the law was not facially neutral and granted a preliminary injunction against the amendment. Id. at 1307-08.

As an increasing number of states consider these Anti-Shari`a laws, the courts are likely to see more constitutional challenges. The Tennessee anti-terrorism law passed in June has yet to be challenged in court, but seems to face similar problems to the Oklahoma amendment, as both specifically name Shari`a in their bans. It will be interesting to watch the judicial system balances two legitimate goals: fighting terrorism and promoting the free exercise of religion. -JKH