Adam Shinar and Anna Su, both SJD students at Havard Law School, have written a provocative paper, Religious Law as Foreign Law in Constitutional Interpretation. Unfortunately only the abstract is available at present, but those wishing to see the paper in full should contact the authors. The abstract is below, followed by some little thoughts about the piece.
This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in U.S. state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. The article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.
The paper begins by considering several criticisms that are made of the use of foreign law in constitutional adjudication — relevance, selectivity and accuracy, and political legitimacy — and it argues that each of these criticisms is equally applicable conceptually to religious law. The paper then addresses each of these criticisms as applied to foreign/religious law; it takes a quite strong view that each of the criticisms misfires.
The most interesting and effective part of the paper (for me) deals with the possible Establishment Clause distinction between reliance on foreign law and reliance on religious law. The authors write:
[N]otwithstanding the recent shift from the strict separationist view that was the logical byproduct of the Jeffersonian wall to the accomodationist view that started with the move to the endorsement theory of the Clause, it did not stop the often obscured fact that the Supreme Court has regularly referred to religious laws in its decisions. Thus, the Court could cite both the New Testament and Mosaic Law in interpreting the Treason Clause, the Sixth Amendment, the Fourth Amendment,the Due Process Clause,and also for prescribing guidelines for criminal sentencing. In the controversial case of Miranda v. Arizona,the Court traced the roots of the privilege against self-incrimination, and cited the teaching of Maimonides, a 13th century rabbi and one of the greatest exponents of Jewish law, tounderscore its historical importance.
The authors then list four possible uses to which religious law might be put in a judicial opinion — to show historical genesis, as interpretive reinforcement, for evidentiary purposes, and as persuasive authority. They claim that none of these uses — even the last — is problematic under the Establishment Clause.