- Special Issue

“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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