by Amara S. Chaudhry, Esq.
The Legal Intelligencer
Following the examples set by Tennessee, Louisiana, Oklahoma, Texas and Arizona, Pennsylvania is poised to pass its own “anti-Shariah” bill — House Bill 2029 (HB 2029), currently pending before the state House Judiciary Committee.
The Council on American-Islamic Relations (CAIR) has led the effort to challenge the constitutionality of “anti-Shariah” bills as these are introduced throughout the country, and CAIR-Philadelphia has led the effort to challenge HB 2029 here in Pennsylvania.
More than 50 “anti-Shariah” bills have been introduced in 25 states based upon the model “American Laws for American Courts” (ALAC) legislation drafted by the American Public Policy Alliance (APPA). Because ALAC legislation raises significant constitutional concerns, most of these bills have died in committee without going to a vote. In the end, only five states have adopted the bills.
CAIR-Philadelphia’s greatest concern regarding HB 2029, and the larger ALAC movement, is the blatant infringement upon the Establishment Clause of the U.S. Constitution. The U.S. Supreme Court has held that the Establishment Clause prohibits any government action that either endorses, or disapproves of, a particular religion because such an action communicates a message that members of the disfavored religion are not full members of the political community.
It is difficult to deny that the intent of the ALAC movement was the official governmental disapproval of the Islamic faith. On its website, the APPA has asserted that the model legislation was created specifically to guard against “the infiltration and incursion of foreign laws and foreign legal doctrines, especially Islamic Shariah Law.” The APPA further asserted that the model ALAC legislation does not interfere with “Jewish law or Catholic Canon Law” because these religious laws do not pose the same threat to constitutional rights or public policy as “Islamic Shariah Law.”
Furthermore, CAIR has documented that David Yerushalmi, the purported author of the model ALAC legislation and the leader of Society of Americans for National Existence (SANE), has called for a “war against Islam” in a SANE “manifesto.” SANE has also called for making “adherence to Islam” a crime punishable by up to 20 years in prison. The group’s website is not publicly available.
Though the ALAC movement initially appears to target only Muslims, the movement draws its strength from more general nativist, xenophobic and anti-minority sentiment. The New York Times has reported that Yerushalmi has been quoted as saying that “most of the fundamental differences between the races are genetic” and that he’s railed against a politically correct culture that avoids open discussion of why “the founding fathers did not give women or black slaves the right to vote.” The Anti-Defamation League has quoted him as saying that African-Americans are a “relatively murderous race killing itself.” He has also been quoted by the ADL as saying that liberal Jews have “destroyed their host nations like a fatal parasite.”
The history of HB 2029 also demonstrates an intent to effectuate an official governmental disapproval of the Islamic faith. The strongest evidence that HB 2029 targets the Islamic faith is a June 14, 2011, co-sponsorship memorandum titled “American and Pennsylvania Laws for Pennsylvania Courts — Shariah Law.” The mere title of this memorandum reveals the bill’s primary purpose of targeting “Shariah law” — not all foreign laws.
The memorandum continues to mention “Shariah law” multiple times throughout its text as something that is “foreign,” ominous and menacing. Copying, almost verbatim, the language used on the APPA website, State Representative RoseMarie Swanger, R-Lebanon, warns that “unfortunately, increasingly, foreign laws and legal doctrines — including and especially Shariah law — are finding their way into U.S. court cases.”
Most alarmingly, Swanger singles out Islam as the target of HB 2029 and specifically warns of “Shariah law, which is inherently hostile to our constitutional liberties.”
Swanger, HB 2029’s sponsor, has asserted in the media that she did not authorize this memorandum. However, the memorandum is available on the General Assembly website and is part of the legislative record for HB 2029.
Given this context, it is not surprising that HB 2029 has generated negative attention.
HB 2029 gained little media attention before CAIR-Philadelphia hosted a press conference concerning HB 2029 on Dec. 14, 2011. This press conference featured CAIR-Philadelphia’s civil rights director and staff attorney, Amara S. Chaudhry, the author of this article; Rabbi Linda Holtzman, senior rabbi of Philadelphia’s Mishkan Shalom synagogue; and Khalid Blankinship, director of graduate studies for Temple University’s Department of Religion. Following this press conference, HB 2029 has been discussed in media outlets including the Philadelphia Inquirer , CBS 3 Philadelphia and the Lehigh Valley’s Channel 69.
CAIR-Philadelphia has engaged in more direct advocacy as well. CAIR-Philadelphia submitted a letter requesting “an opportunity to be heard” with both chairs of the House Judiciary Committee, state Representative Ronald Marsico, R-Dauphin, (chair) and state Representative Thomas R. Caltagirone, D-Berks (minority chair). CAIR-Philadelphia also submitted a bound, tabbed, 62-page memorandum of law opposing HB 2029 to the Harrisburg office of each of the 25 members of the House Judiciary Committee.
Additionally, CAIR-Philadelphia and other organizations asked Philadelphia City Council to consider a resolution in opposition to HB 2029. City Council unanimously passed Resolution 120031 in opposition to HB 2029 under the leadership of Councilwoman Maria Quinones-Sanchez and Councilman Curtis Jones. Furthermore, CAIR-Philadelphia and CAIR-Pittsburgh encouraged Pittsburgh City Council to pass a similar resolution, and Pittsburgh City Council passed Resolution 163 opposing HB 2029 on March 6.
In its national effort, CAIR’s position against ALAC has had support from legal organizations, the interfaith community, civil rights organizations and the federal court system. On a national scale, the American Bar Association passed Resolution 113A in opposition to all federal and state ALAC legislation. In Oklahoma, the Alaska Conference of Catholic Bishops submitted a letter in support of CAIR against ALAC legislation. In Oklahoma, the ACLU served as co-counsel to CAIR in litigation that has resulted in successive rulings in CAIR’s favor against ALAC.
The only courts that have considered the constitutionality of ALAC legislation have ruled in CAIR’s favor against ALAC. In a case in which CAIR-Oklahoma Executive Director Muneer Awad served as lead plaintiff, the U.S. Circuit Court of Appeals for the Tenth Circuit upheld a lower court ruling that concluded that the Oklahoma ALAC bill, known as the “Save Our State Amendment” to the Oklahoma Constitution, created a “justiciable” Establishment Clause claim.
Proponents of ALAC legislation argue that ALAC legislation is necessary to prevent “Shariah law,” used as a reference to Islamic beliefs and practices, from circumventing the U.S. Constitution. However, the U.S. Supreme Court has repeatedly indicated that religion cannot be used as an excuse to circumvent generally applicable laws. For example, the U.S. Supreme Court has held that the Free Exercise Clause cannot be used to circumvent generally applicable criminal laws relating to bigamy (in Reynolds v. United States, 98 U.S. 145 (1878)) and ingestion of controlled substances (in Employment Division v. Smith ,494 U.S. 872 (1990)). The Free Exercise Clause cannot be used to circumvent laws designed for the protection of children (see Prince v. Massachusetts , 321 U.S. 158 (1944), relating to child labor laws), the regulation of business (see Braunfeld v. Brown, 366 U.S. 599 (1961), relating to Sunday closing laws), the payment of taxes (see U.S. v. Lee , 455 U.S. 252 (1982), relating to Social Security taxes), and issues involving national security and the regulation of the military, (see Gilette v. United States, 401 U.S. 437, 461 (1971), relating to registration with Selective Service).
In truth, ALAC proponents cannot credibly claim that their goal is to preserve the U.S. Constitution. Yerushalmi has expressed a legislative strategy aimed toward “avoiding the sticky problems of our First Amendment jurisprudence” by using “facially neutral” language in the plain text of the model legislation. Moreover, the APPA has criticized the drafters of the Oklahoma ALAC legislation on the basis that the drafters were not sufficiently skilled at drafting a bill that would survive these “sticky problems” of U.S. “First Amendment jurisprudence.”
However, HB 2029’s arguably “facially neutral” language fails to insulate HB 2029 from the religious freedoms guaranteed by the Pennsylvania and federal constitutions. The U.S. Supreme Court has held that, in determining whether legislation was intended to target a particular religion, the court may consider all evidence of discriminatory intent and is not limited to the plain text of the legislation itself.
Moreover, HB 2029 creates a carveout exception for corporations, which, rather than insulating HB 2029 from constitutional scrutiny, makes the legislation more susceptible to constitutional challenge. The carveout exception for businesses demonstrates that HB 2029 is not targeted at all “foreign law,” as the plain text suggests, but instead is targeted only against “Shariah law,” as a moniker for the Islamic faith.
If HB 2029 is passed, CAIR-Philadelphia will immediately file a federal civil rights law suit challenging HB 2029 on constitutional grounds.
In the meantime, CAIR-Philadelphia is educating the public about HB 2029 and the larger ALAC movement from which it hails.
Amara S. Chaudhry is the civil rights director for the Council on American-Islamic Relations’ Philadelphia office. She previously worked as legal director for Mazzoni Center and for Equality Advocates Pennsylvania and had a prior career as an assistant public defender and private criminal defense attorney in West Virginia and Pennsylvania.
