The interaction between religious freedom and secular law is a controversial issue that the courts have been grappling with since the beginning of the republic.

The questions of when one’s right to exercise deeply held religious beliefs must succumb to secular restrictions and whether the government may ban certain religious practices has caused concern and angst among non-Muslims with respect to Sharia law, which provides Muslims with a “path” to living in accordance with the tenants of Islam.

Religious freedom in the United States is guaranteed by the Establishment Clause and the Free Exercise Clause in the First Amendment, which provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” (The oft-cited language regarding “separation of church and state” is not found in the Constitution or Bill of Rights, but came from a Supreme Court decision, citing a letter written by Thomas Jefferson.)

The Supreme Court has enunciated two tests to determine whether a law violates the Establishment Clause. First, a law that provides a benefit to all religions and does not discriminate between religions will pass muster if it has a secular legislative purpose; its principal or primary effect must be one that neither advances nor inhibits religion; and the statute must not foster an excessive government entanglement with religion. Second, if a law does discriminate among religions, it can only survive if it furthers a compelling state interest and is designed as the least restrictive method to achieve that interest.

In 1990, the Supreme Court held that as long as a law was generally applicable, it would withstand any challenge under the Free Exercise Clause. In reaction, Congress passed the Religious Freedom Restoration Act, which the Supreme Court limited to federal legislation. The RFRA requires the federal government to establish a compelling governmental interest to enact a law that, while neutral on its face, interferes with religious practices. The government must also demonstrate that the law is the least restrictive method to achieve the governmental interest. Many states have passed versions of the RFRA applicable to state and local laws.

As a starting point, a blanket ban on Sharia law would be unconstitutional. In 2012, the 10th Circuit struck down a voter-approved amendment to the Oklahoma state constitution that would have prevented state courts from considering or using Sharia law. The court ruled that it violated the Establishment Clause because the amendment unduly singled out Sharia law, there was no single instance in which Sharia law was being used or considered by courts, and the state could not show a compelling government interest for the ban, other than the general interest in what laws are applied in Oklahoma courts.

However, there are certain practices in some variations of Sharia law that are abhorrent to basic civil rights and our sense of fairness and justice that could, or already have been, banned directly. For instance, polygamy, which is generally recognized under Sharia law, is against the law in the United States because there is a compelling state interest to promote monogamous marriages.

Under many iterations of Sharia law, there are various practices that would not qualify under the Freedom of Expression clause or the RFRA, since there is a compelling state interest that already prohibits such behavior, including, but not limited to, such practices as: a husband being allowed to strike his wife (or “lightly beat” her as a pending law in Pakistan would allow), not allow her to leave the house without his permission and force her to have sex against her will; depriving a wife of any property rights and alimony in the event of a divorce; female genital mutilation; limitations on a wife’s right with respect to child custody in the event of a divorce; corporal punishment of thieves; honor killings; and harsh treatment of homosexuals.

It should be noted that Muslims, like Christians, Jews and others religious persons, may choose to submit their disputes to religious tribunals as provided for under the Federal Arbitration Act, and those decisions are entitled to be given the force of law by the courts. However, there are limitations to such arbitration. For instance, no one can consent to violence and minors cannot consent to arbitration. Moreover, any decision that leaves a women destitute after a divorce or that adversely affects the best interests of a child would not be given effect by any court.

In sum, although there are many aspects of Sharia law that are truly disturbing to non-Muslims and, indeed, to other Muslims, we need not be concerned about the government sanctioning those aspects of Sharia law in America since they are not protected by the Establishment or Free Expression Clauses or by the Religious Freedom Restoration Act.

William E. Zimsky is a attorney at Abadie & Schill, P.C. in Durango, focusing on oil and gas, real property law, civil rights and election law. Reach him at bill@abadieschill.com.