“Islamic Law” in US Courts: Judicial Jihad or Constitutional Imperative?

Article by: Faisal Kutty

41 PEPP. L. REV. 1059 (2014)

This paper argues that in a nation with a constitutional guarantee of freedom of religion, and which respects the notions of freedom of contract and legal pluralism, religion must not be excluded outright from the calculus of court decisions if we are to ensure equal treatment and access to justice in a multi-religious society. Contrary to those who argue that America is experiencing creeping Sharī’ah and that courts have caved in to judicial jihad, this paper posits that courts have simply carried out their constitutional imperative of equal treatment and religious freedom for all within the parameters of the Constitution, principles of comity, freedom of contract, and federal and state public policy goals. Part I introduces the issue with a macro overview of first amendment jurisprudence. Part II reviews how U.S. courts have treated cases involving contracts, arbitrations, defenses, and other personal law matters brought by Muslims or that address the Islamic faith. Part II also situates this debate through the prism of the right to contract, the principle of comity and public policy. Part III presents the argument that, given the essentially multicultural and legal pluralistic nature of American society, constitutional rights to religious freedom and freedom of contract will only have any real value when religious communities, including Muslims, are guaranteed some level of autonomy and access to justice both within and outside US courthouses. Part V concludes that far from succumbing to the Sharī’ah bogeyman and an imaginary judicial jihad, defending religious freedoms and equal treatment is the only way to remain true to the founding constitutional principles of this great country.

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Rethinking the “Religious-Question” Doctrine

Article by: Christopher C. Lund

41 PEPP. L. REV. 1013 (2014)

The “religious-question” doctrine is a well-known and commonly accepted notion about the First Amendment’s Religion Clauses. The general idea is that, in our system of separated church and state, courts do not decide religious questions. And from this premise, many things flow—including the idea that courts should dismiss otherwise justiciable controversies when they would require courts to decide religious questions. Yet a vexing thought arises. The religious-question doctrine comes out of a notion that secular courts cannot resolve metaphysical or theological issues. But when one looks at the cases that courts dismiss because of the religious-question doctrine, none of them involve questions of a metaphysical or theological nature. Cases sometimes require decisions about what particular individuals or religious communities happened to believe, how they acted, or what motivated their actions. But those are temporal and empirical questions, which courts can investigate the same way they investigate everything else. So when some claim that the doctrine is needed to keep the government out of theological issues or to maintain the government’s religious neutrality, they seem to go wrong. And when this thread gets pulled, the religious-question doctrine just seems to unravel. While this short symposium piece leaves much unanswered, it suggests that a reconceptualization of the religious-question doctrine might be in order. If the religious-question doctrine is not primarily about the government’s inability to decide theological or metaphysical questions, what is it about? This piece tentatively suggests an answer: It is about religious liberty. Courts stay out of religious questions when they believe religious liberty is best advanced by courts staying out of religious questions. And courts get involved in religious questions when they believe religious liberty is best advanced by courts getting involved in religious questions. At bottom, the religious-question doctrine has more to do with religious liberty than religious questions.

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Foreign and Religious Family Law: Comity, Contract, and the Constitution

Article by: Ann Laquer Estin

41 PEPP. L. REV. 1029 (2014)

As a family law scholar, I believe that the goals of secular and religious family law are often harmonious, and I have argued for a legal pluralism in the United States that is subject to the constraints of our fundamental “political and constitutional values, [including principles] of equality, nondiscrimination, [due process,] and religious freedom . . . as well as the protective policies that form the foundation for our particular rules of family law.” This vision of pluralism seeks to accommodate diverse cultural and religious traditions within our secular legal system, and rejects an approach in which autonomous religious institutions exercise independent authority over family law matters. This approach “reflects a contemporary understanding of our society as a diverse and multicultural one, and of the family as central to the establishment of identity and meaning in private life.” My writing has explored the process in which common law courts adjudicating these cases have begun to develop principles defining the terms and limits for accommodation of religious family practices, and I have followed with interest as many judges and scholars in the United States and other countries have made thoughtful contributions to this dialogue.

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Religious Tribunals and Secular Courts: Navigating Power and Powerlessness

Article by: Michelle Greenberg-Kobrin

41 PEPP. L. REV. 997 (2014)

In this Article, I will focus on the various ways that religious systems have attempted to navigate their relationship with the secular legal system and the secular system of values by looking at common law, legislation, and contract. I will think about the conceptualization of how contract can be used both to avoid interference of the secular legal system, as well as to provide the religious legal system with some enforceability. As the use of religious contracts to negotiate the intersection with secular law becomes more popular, contracts could be used to further the aims of those interested in protecting the autonomy of religious legal systems, while still thinking through how notions of basic protection available to both genders in secular law may be available to those interested in religious legal systems, and still balancing interests in equality and contemporary notions of basic rights with the religious legal system.

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Introduction: Religious Law in the 21st Century

Article by: Michael A. Helfand

41 PEPP. L. REV. 991 (2014)

As the world has moved into the 21st century, new tensions between law and religion have become an almost daily affair. In only the last few years, such tensions have emerged regularly in the United States as courts legislators, and citizens all debate how government should navigate the increasing conflicts between the demands of law and the demands of religion. Such emerging tensions run the gamut of the human condition— from family life to employment relationships, and from individual claims of religious conscience to institutional claims of religious autonomy. Indeed, the Supreme Court has been called upon to weigh in on these recent skirmishes—and with increasing frequency. For example, in two recent decisions—Hosanna Tabor Evangelical Lutheran Church and School v. EEOC and Christian Legal Society v. Martinez—the Supreme Court considered conflicts between anti-discrimination norms and religious liberty. And in 2014, the Supreme Court resolved two more big-ticket conflicts between law and religion, holding a town’s legislative prayers to be constitutional and striking down a rule that had required for-profit, religiously-motivated employers to provide insurance that covered contraceptives. Moreover, these cases before the Supreme Court are just the beginning; other recent high profile tensions include a 2011 attempt to ban circumcision in San Francisco, the increased adoption of state anti-Sharia bills—bills that prevent state courts from considering religious law in their decisions—and state laws prohibiting religiously-motivated business owners from denying services for same-sex weddings.

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More “Vitiating Paradoxes”: A Response to Steven D. Smith

Article by: Paul Horwitz

41 PEPP. L. REV. 943 (2014)

If I were to select a candidate for Legal Theory Trends That Should Have Been, one of my first nominees would be Conservative Critical Legal Studies. The list of key practitioners in the field would, I admit, be tiny. But one of its most honored members would be Steven D. Smith. Of course there is something puckish in this description. The positions Smith argues for, or at least treats as worthy of consideration, are not usually associated with the Critical Legal Studies (CLS) movement, which is generally assumed, both in the popular imagination and by many of its less supple academic fans, to be entirely a creature of the Left. But at least a few observers have long understood that the CLS approach, while it may be intrinsically radical, is not intrinsically tied to the Left. In particular, two central CLS themes—the “identification, in numerous substantive areas of law, of paired oppositions and standard arguments deploying sets of claims from one side of those oppositions against sets drawn from the other side,” with the inevitable effect of destabilizing or heightening the visible contradictions in those sets, and the related sense of “alienation from, or as expressed within, the legal system”—are no political side’s sole preserve. To the extent that a common, or key, CLS move is to “recast the assertions of mainstream scholars as doubts,” or to “take mainstream claims one at a time, severing them from their fluid interrelationship with their negation in mainstream work, and extend them seriously until they succeed or collapse”—usually the latter—nothing requires that move to end in a particular political location (or to end at all).

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