Several months ago, the South Dakota Legislature enacted this law:
No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.
My question: What exactly does it mean to “enforce any provisions of any religious code”? If the law is (A) limited to barring courts from enforcing religious law because it’s religious law (e.g., “because the defendant is a Muslim, we will apply Islamic law to him”) or from interpreting contracts or wills that call for application of religious law (e.g., “interpret this prenuptial agreement according to Jewish law”), then I suspect that the law is merely duplicative of existing law. Courts already can’t enforce religious law just because it’s religious law, or interpret religious law even when interpreting an contract or a will (though there’s some dispute about that).
But if the law (B) bars courts from enforcing statutes that mirror a religious prohibition, foreign laws that mirror a religious prohibition, or terms in contracts or wills that mirror a religious prohibition, then it would be much broader: It would, for instance, invalidate wills that provide that each son inherit twice what each daughter inherits, when that’s intended to follow Islamic law. It would invalidate contracts that are structured in order to comply with Islamic law prohibitions on paying interest. It would invalidate contracts or covenants that bar the sale of alcohol on certain property, when that’s intended to follow either Christian beliefs (to the extent that they are seen as forming a “religious code”) or Muslim beliefs.
It would render unenforceable contracts that provide that disputes be resolved using religious arbitration, whether Christian or Jewish, if those contracts are intended to follow perceived Christian or Jewish religious obligations not to have one’s disputes resolved by outsiders. And it might render invalid foreign divorces that were entered by Sharia courts, as they are both in countries that generally follow Sharia and also in countries (such as Israel, India, and Lebanon) that follow the millet system, under which family law matters are handled by the religious courts of the religion to which the family belongs. (Or would such recognition of foreign divorces not constitute enforcement of the legal system that created them?)
I’m inclined to think that the most sensible interpretation of the provision, both based on its text and its consequences, is the one I label (A); but the trouble is that this might well make the law entirely redundant of existing law. So I wanted to get readers’ sense — do you think the law should be read under interpretation (B), or perhaps under some third interpretation? I ask partly because I’ll be giving a talk on this general subject in a couple of months, and possibly writing an article on it as well.
UPDATE: Some commenters suggested that I look at the discussion of the law in the South Dakota Legislature. I’m not sure how much weight such discussions should have, given that they at most reveal the views of the few legislators who have spoken, and for that reason some judges refuse to pay attention to such floor statements altogether, and others pay little attention to them (though still others sometimes pay a good deal of attention to them).
This having been said, I did look this up — audio of South Dakota legislative hearings is fortunately available online — and here’s what I saw from the Representative who introduced the law, Roger Hunt: (1) Part of the purpose of the bill is to codify a South Dakota Supreme Court decision (Wipf v. Hutterville Hutterian Brethren) — and U.S. Supreme Court decisions along the same lines — that courts generally can’t interpret religious doctrine in resolving disputes, especially intrachurch disputes. (2) Another part is “to deal with what I’m going to say generally has been referred to as Sharia Law.” (3) The law is not supposed to limit religious arbitration, or presumably the enforceability in secular courts of the decisions of religious arbitral tribunals. Here’s a relevant quote on the Sharia question, from the House Judiciary hearing:
[2:30:15] Part of the purpose of 1253 is to deal with what I’m going to say generally has been referred to as Sharia Law…. [2:31:02] [O]ur code does address how we treat foreign laws, but it obviously doesn’t take care of all issues and all questions, and so 1253 will in essence accomplish, in my opinion, two things — it helps to codify the decision of the Supreme Court [essentially holding that courts may not interpret religious law in resolving church disputes] and secondly, it also gives us the provision needed to in essence deal with religious codes that might be sought to be utilized and enforced in the State of South Dakota. I want to emphasize the fact that we have purposely left out reference to arbitrator and arbitration, because we want any religious groups to be able to utilize that type of mechanism in order to resolve their responsibilities within their particular group.