Islamic Law in American Courts: Good, Bad, and Unsustainable Uses

A number of states have proposed initiatives or implemented laws that prohibit state courts from applying, considering, or interpreting foreign law, and in particular, Islamic law. The constitutionality of anti-Sharia legislation is in question. Its proponents claim that the Sharia ban protects state and federal constitutional rights, whereas its opponents claim that the ban infringes on the religious freedom of Muslims. The all-or-nothing approach to anti-Sharia legislation misses the distinction between cases where Islamic law should be given consideration from the cases where it should have no influence on judicial decision. This Essay provides a principled distinction between the different uses of Islamic law and shows how the courts can preserve a balance among religious liberty and other constitutional rights. By applying three principles—neutrality, reciprocity, and protection—derived from the core commitments of a liberal democratic society , this Essay explains the distinction between good, bad, and unsustainable uses of Islamic law in American courts: (1) good use where the judge's application , consideration or interpretation of Islamic law should be sustained; (2) bad use where the grounds that render the use unsustainable may be overridden by other considerations; and (3) unsustainable use that lacks overriding considerations. This Essay offers a way to avoid the undesirable consequences of a strict ban or an unrestricted permission on Sharia use by applying the three principles to a number of cases involving Islamic law reviewed by American courts.