South Dakota legislators this week overwhelmingly approved a law aimed at preventing Islamic law from creeping into its judicial system – a measure that supporters drafted in an effort to ward off the constitutional challenges threatening similar legislation in other states.
The measure, which is expected to be signed into law in the next two weeks by Republican Gov. Dennis Daugaard, attempts to avoid legal shoals by barring enforcement of "religious code" by U.S. courts, rather than focusing on foreign laws as other state laws have done.
Nonetheless, civil rights advocates are vowing to challenge the bill, saying it violates the First Amendment. Beyond that, critics say the South Dakota bill and similar legislation in other states unfairly stigmatize Muslims by signaling that their religious beliefs are dangerous to society and may gradually undermine American democracy.
Shariah law is a code of conduct that guides observant Muslims on many matters, including prayer, diet, marriage, business transactions and inheritance. Decisions derived from its codes are incorporated in contracts and wills, which can in turn wind up in American courts, as do contracts and wills based on other religious beliefs.
Supporters of legislation to ban consideration of Islamic law point to what they consider abhorrent and un-American practices — honor killings, limited child custody rights for women, tolerance of domestic abuse and cruel punishments, such as cutting off the hand of a thief — as examples of activities that could be sanctioned if U.S. courts were to consider Shariah law before rendering decisions.
Critics note that these practices are already illegal under U.S. law.
South Dakota is one of about 20 states to consider legislation that would prevent courts from applying Shariah law.
The highest court to rule on an anti-Shariah law, the 10th Circuit Court of Appeals in Denver, in January agreed with a lower court that an Oklahoma law barring state courts from considering or using Shariah law was likely an unconstitutional infringement of freedom of religion and upheld an injunction against its enforcement. The law was approved by more than 70 percent of Oklahoma voters via a November 2010 ballot initiative.
Civil rights organizations are growing concerned amidst reports of a surge in hate crimes toward Muslims. NBC's Ameera David reports.
The Oklahoma amendment stated that: "The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Shariah law."
In the last few years, some states have adopted measures that originally aimed at Shariah but were passed without much notice. Some of these statutes say -- essentially -- that illegal actions are against the law, said Gadeir Abbas, staff attorney for the Council on American Islamic Relations, a nonprofit civil rights group. As a result, while the intent of those laws may have been anti-Islam, they ultimately did not merit legal challenge, he said, because they don't really "do anything.'
The debate in South Dakota was largely about which version of anti-Shariah legislation would be most apt to stand up to a court challenge, not whether such a law should be adopted. Lawmakers, in fact, were quite blunt that it was Shariah that concerned them.
HB 1253, which passed 29-4 in the state Senate on Tuesday, is about as brief as they come -- one line: "No court, administrative agency or other governmental agency may enforce any provisions of any religious code," it reads.
'Growing demographic concern'
Gov. Daugaard’s general counsel Jim Seward testified that the bill served to "answer the question of the Sharia law" without being unconstitutional or interfering with business interests.
This bill was motivated by a "growing demographic concern in Sioux Falls," Seward said, referring to the influx of immigrants from majority Muslim countries.
"I would be less than fully honest with you if I didn`t also say that part of the purpose of (HB)1253 is to deal with what I am going to say generally has been referred to as Shariah law," Republican Rep. Roger Hunt, who sponsored the bill, said in a judiciary committee hearing.
"I don’t know that there will be anybody who will seek to enjoin it," Hunt told msnbc.com. "It codifies a couple of Supreme Court decisions."
One of the Supreme Court cases that Hunt embraces to bolster his argument involves a recent ruling on a dispute among members of a Hutterite colony in South Dakota.
The Hutterites are a branch of Anabaptists like the Amish or Mennonites who live communally. A lower court had dissolved their corporation, but the high court ruled that the decision required excessive entanglement in religious arguments where courts should not have jurisdiction.
But opponents of the South Dakota bill say that asking courts to judge what is religious code and what is not -- in order to decide what it can and cannot enforce -- is in itself unconstitutional.
"If HB 1253 were signed into law today, it would be a blatant violation of the Establishment Clause" of the First Amendment, Abbas said in a letter to Daugaard on Wednesday. "It would also communicate to the world that South Dakota does not welcome religious minorities."
The South Dakota bill does exactly what that Oklahoma legislation did, "albeit in a slightly more general manner," said CAIR’s Abbas, who was involved in the successful challenge to the Oklahoma measure.
"This law is obviously unconstitutional and a court challenge may be in the offing, if it gets signed," he said.
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