JURIST Guest Columnist Nimra Azmi, Harvard Law School Class of 2015, discusses a recent vote for a bill by the North Carolina General Assembly which would ban all foreign law from the state…

On August 25, 2013, the North Carolina General Assembly passed the Family, Faith, and Freedom Protection Act of 2013 [PDF], which forbids the use of “foreign law” in North Carolina state courts. Likely seeking to deflect criticism and circumvent recent federal precedent that has declared pointed bans of Shariah unconstitutional, the North Carolina act has replaced “Shariah law” with “foreign law.” While the North Carolina bill was initially a straightforward prohibition of the use of “foreign law” in state courts, the state legislature added a lengthy provision, limiting insurance coverage of abortion and requiring “informed consent” and a 24 hour waiting period prior to performance of an abortion. Of course, there is a luscious irony in the inclusion of an anti-abortion measure in the self-same bill that ostensibly serves to stymie the infiltration of religious doctrine into American law, with the question of exactly whose freedom of faith the act protects.

North Carolina is certainly not the first state to introduce legislation resisting the perceived threat of “creeping Shariah.” Since 2010, similar laws have been proposed in 25 states, including New Jersey, Pennsylvania, Michigan and Minnesota. Seven other states have gone so far as to pass such laws. Proponents of anti-Shariah laws like North Carolina’s claim that such laws buttress constitutional liberties. Opponents argue that the bills are redundant: the US Constitution already defends the liberties that these bills profess to protect and such acts serve only to incite anti-Muslim sentiment. The American Bar Association has warned that these bills, in their prohibition of “foreign law,” can adversely impact businesses, economic development and US foreign commerce. Not only do such measures call into question the enforceability of international agreements and awards, but they can also limit [PDF] the growth and expansion of foreign companies and companies with foreign employees into states that have approved these laws.

Recently, the case of Awad v. Ziriax questioned the constitutionality of such anti-Shariah efforts. On May 25, 2010, the Oklahoma House of Representatives and Senate passed the Save Our State Amendment [PDF] (also known by the utterly non-alarmist abbreviation SOS) which proscribed state courts from considering international or Shariah law when deciding cases. In bringing the suit, Muneer Awad contended that the Save Our State Amendment violated his free exercise and establishment clause rights under the First Amendment. He argued that the amendment’s singling out of Islam stigmatized Muslims, would prevent a court from executing his last will and testament which had been drawn under Shariah, and limit the relief Muslims could obtain from state courts. In Awad’s view, the Save Our State Amendment excessively entangled government and religion.

In Awad, the US Court of Appeals for the Tenth Circuit held that the express condemnation of Islam in the Save Our State Amendment created a direct-in-fact injury that produced standing for an establishment clause suit. Finding that the language of the amendment differentiated between religions and did so expressly, the Tenth Circuit applied the strict scrutiny standard from Larson v. Valente, which holds that “if a law discriminates among religions, it can survive only if it is ‘closely fitted to the furtherance of any compelling interest asserted.'” The Tenth Circuit found that although Oklahoma had expressed a valid state concern (“determining what law is applied in Oklahoma state courts”), the amendment was not seeking to solve any present problem and thus lacked the requisite “compelling interest” to survive strict scrutiny. The court held that even if Oklahoma was attempting to rectify a specific issue, a statewide ban of Shariah was not “narrowly fitted” under the Larson standard. This failure under strict scrutiny led the Tenth Circuit to grant Awad’s petition for preliminary injunction.

The North Carolina state legislature, no doubt with an eye to the ruling in Awad, removed specific reference to Shariah law, instead targeting “foreign law.” While in Awad, the Tenth Circuit found strict scrutiny particularly applicable under Larson based on the Save Our State Amendment’s express mention of Shariah, the absence of a direct reference does not prevent a court from applying Larson‘s standards. To wit, the act challenged in Larson did not mention any particular faith. Rather, it required registration and disclosure from religious organizations that received more than half of their contributions from nonmembers. This denominational preference to well-established religious groups led the US Supreme Court to find that the act violates the establishment clause. Moreover, the Court found that the act was not “tightly fitted” to any supposed legitimate public purpose.

Under the Supreme Court’s reasoning in Larson, North Carolina’s Family, Faith, and Freedom Protection Act may ultimately fail strict scrutiny and be overruled under the establishment clause despite the attempt to guise Shariah as “foreign law.” Like the act in Larson, the North Carolina act would affect only certain denominations: in this case, proceedings under the laws of those faiths deemed foreign—Islam, Hinduism and potentially Judaism, among others. Whether Christianity’s Middle Eastern and European roots are enough to categorize it as “foreign” remains to be seen. The absence of a specific mention of Shariah law, perhaps thought to be a coup of legislative maneuvering after Awad, may not suffice to preserve the act. It may also be found that the act lacks a legitimate public purpose, particularly since the US Constitution already preserves the liberties the act claims to protect. As a North Carolina state senator noted, “There’s not a single instance of anything like that [Shari’ah law] appearing in the North Carolina courts. And yet, you’re playing to people’s base fears by promoting this.” Even if courts were using Shariah law or other religious or “foreign” law in the interpretation of marriage contracts or similar, if its utilization aligned with principles of American law, then surely no indignity would be suffered by the people of North Carolina. Assuming arguendo, as the Supreme Court did in Larson, that a legitimate public purpose could be discovered, a broad-stroke prohibition against the application of foreign law may be deemed not “tightly fitted” enough to serve its purpose.

The Supreme Court has also previously found, in a key First Amendment case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah that “[f]acial neutrality is not determinative … The Free Exercise Clause protects against governmental hostility which is masked, as well as overt.” In Lukumi, the City of Hialeah passed an ordinance which prohibited the sacrifice of animals, directly interfering with the petitioner Santeria church’s practices. Although the ordinance itself was facially neutral, the Supreme Court deemed the law to be of non-neutral applicability and thus subject to strict scrutiny. Under Lukumi then, despite the facial neutrality of North Carolina’s act, its non-neutral application, which could disable practices of Muslims as well as of adherents of other faiths deemed to be not American enough, may lead to a finding of unconstitutionality under the free exercise clause. Furthermore, in Lukumi, the Court looked to the record, the language in the city council’s enactments and identified deliberate machinations against Santeria. Similarly, there can be no doubt that the North Carolina General Assembly passed the Family, Faith, and Freedom Protection Act under anti-Muslim auspices. The bill’s sponsor, Senator E.S. Newton, emphasized that the legislation was directed at Islamic law during the assembly session that passed the bill.

Ultimately, the passage of the Family, Faith, and Freedom Protection Act was motivated by bigotry and extremism, representing an abuse of power by a narrow-minded group unabashed in its ignorance. It follows the same xenophobic vein as previously passed acts that have been accordingly struck down as unconstitutional. No true public purpose is to be found here, save for the drumming up of anti-Muslim sentiment in the name of politics and prejudice. At best the attempted passage of this bill is fear mongering and at worst, an avatar of oppression—a reminder to Muslims and those of “foreign” faiths that they are other and unwelcome. Despite North Carolina’s attempt to distinguish its bill from the bill in Awad, these shallow reconstructions have not obfuscated the bill’s malicious intent in the eyes of the public, and if precedent should guide, the reworking of the bill will not be enough to veil it in the eyes of the law.

Nimra Azmi received her B.A. from Barnard College. She most recently has worked with the ACLU as a Legal Intern for Program on Freedom of Religion and Belief.

Suggested citation: Nimra Azmi, The Family, Faith and Freedom Protection Act of 2013 Is An Abuse of Power, JURIST – Dateline, Sept. 20, 2013,http://jurist.org/dateline/2013/09/nirma-azmi-religious-freedom.php.