Anti-Muslim Hysteria Returns: Texas Lawmakers Consider Ban on ‘Religious or Cultural Law’

by Dan Quinn

UPDATE: Rep. Flynn apparently has pulled HJR 43 from committee consideration today. We’ll keep an eye on it.

The absurd campaign to ban the mythical threat of Sharia law (Islamic law) in Texas has returned to the state Capitol. Today the House State Affairs Committee will consider a proposed amendment to the Texas Constitution that says state courts “may not enforce, consider, or apply any religious or cultural law.” Efforts in 2011 to pass similar measure failed, although proponents kept trying into the summer.

HJR 43, by state Rep. Dan Flynn, is based on similar measures that have been pushed in various states. (In 2011, we looked at the man behind the anti-Sharia bills around the country.) Earlier efforts in other states ran into constitutional problems because they singled out Sharia law, making their anti-Muslim bias obvious. So supporters dropped those specific references to Sharia law and, like HJR 43, seek a broad ban on “religious or culture law.” But hysteria over Islam typically take center stage during debates over these measures.

We have a briefing paper on HJR 43 here, but here are the key points about HJR 43 and similar measures.

First, they’re completely unnecessary. The chances that courts will impose Sharia law on Texas are zero — unless we decide to throw out the Texas Constitution and the First Amendment to the U.S. Constitution, both of which already bar imposing religious law as civil law. Indeed, proponents of these measures have never provided clear examples of Texas courts imposing Islamic law on unwilling parties.

Second, HJR 43 could create serious conflicts here in court cases involving foreign laws that have a religious or cultural basis. For example, would state courts recognize marriages performed outside the United States when foreign couples move here? Would state courts also be barred from recognizing agreements freely made by two parties to settle a dispute based on the laws of their own religious faith or other cultural beliefs? Moreover, the American Bar Association explains that the broad language of measures like HJR 43 could interfere with Texas firms engaged in international trade litigation and with Texas businesses negotiating international deals. As stated by one court, the ABA notes, “[w]e cannot have trade and commerce in world markets … exclusively on our terms, governed by our laws.”

Third, measures like HJR 43 are potentially unconstitutional because, as the Anti-Defamation League has said, they “are, at their core, predicated on prejudice and ignorance. They constitute a form of camouflaged bigotry that enables their proponents to advance an idea that finds fault with the Muslim faith and paints all Muslim Americans as foreigners and anti-American crusaders.” If you doubt that contention, simply listen to the public debates over these measures. The anti-Muslim hysteria almost always takes center stage. Stay tuned.