Rules attorney warns SB1573 may raise Establishment Clause problems

A committee member moved that Senate Bill 1573 is constitutional and in proper form; the Rules Committee approved the recommendation after legal counsel described potential constitutional risks.

Rules attorney Holder told the committee SB1573 "adds a new statute that prohibits courts from relying on religious sectarian law." She warned the measure could run into First Amendment Establishment Clause problems because it treats some religious legal traditions differently and thus triggers the Larson/strict-scrutiny framework. Holder cited a Tenth Circuit decision that struck down an Oklahoma proposal that would have prohibited courts from applying Sharia law, saying the court required the state to identify a compelling government interest and close tailoring.

Representative De Los Santos asked whether Arizona courts have applied sectarian law; Holder replied she was not aware of any instances. After limited discussion, the committee voted to recommend SB1573 as constitutional and in proper form (vote recorded as 5 ayes, 2 nays, 1 absent).

The committee advanced the bill with the rules office noting the constitutional concerns counsel identified; members did not adopt amendments in committee.