'Islamic Law' in U.S. Courts: Judicial Jihad or Constitutional Imperative?

Abstract

At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date.

Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping Sharī’ah overtaking the American legal system, but plenty of plain bigotry in the form of Islamophobia. The evidence suggests that courts treat claims by Muslims using religious law the same way they deal with claims brought by those of other faiths and those of no faith — sometimes they are accepted and sometimes they are rejected. The Paper concludes that, far from evidencing creeping Sharī’ah or a surrender to judicial Jihad, the cases only confirm that the American Constitution and legal principles stand firm and pre-eminent; Muslims merely have had access to the dockets, nothing more.

Keywords: Islamic law, Establishment Clause, Church and State, First Amendment, Sharī’ah, Sharia, Shari’a, mahr, talak, Islam, Muslims, Islamophobia, foreign law, international law, comity, public policy, contract law, alternative dispute resolution, arbitration, Free Exercise Clause, Constitutional law