Justice for All: American Muslims, Sharia Law, and Maintaining Comity within American Jurisprudence
Fallon, Sarah M., Boston College International and Comparative Law Review
Abstract: The U.S. Muslim population, although currently only comprising one percent of all Americans, is on the rise. Muslim Americans are largely assimilated, happy with their lives, moderate with respect to divisive issues, and opposed to violence. Nonetheless, in recent years, a growing misunderstanding and fear of Muslims has led some activists to seek to ban the application of Islamic law, or Sharia, in American courts, despite the lack of evidence of an increase in the use of Sharia in U.S. courts. These attempted bans have seen varying degrees of success. This Note argues that these bans violate the voluntary, but longstanding, principle of comity and are unnecessary. When properly applied, comity prevents Sharia from pre-empting the Constitution while encouraging mutual acceptance and understanding between Muslim and non-Muslim Americans.
[M]any [American Muslims] live in a psychological ghetto caused by the lack of acceptance they feel from their neighbors and colleagues, especially in the post-Sept. 11 era. This psychological ghetto may prove the largest challenge in the war on terrorism.
In November 2010, Oklahoma voters overwhelmingly approved an amendment to the state constitution that would prevent state judges from considering Islamic law-known as Sharia-or other international law in their decisions.2 A federal district court granted a preliminary injunction barring the State Board of Elections from certifying the elec- tion results and implementing the amendment.3 On review, the U.S. Court of Appeals for the Tenth Circuit upheld the injunction, thereby preventing the amendment from taking effect.4 Although initially more successful than most, Oklahoma was not the first state to seriously con- sider such a ban.5
Initiatives like Oklahoma's arise from misconceptions about Sharia and its application in the United States, as well as widespread Judeo- Christian wariness of Muslims, both within and outside the United States.6 A number of factors have led to this pervasive fear and distrust of Muslims and Islamic law, including military conflicts (particularly those regarding oil), sour diplomatic relations with several predomi- nandy Muslim countries, and a misunderstanding of differences be- tween belief structures.7 Although Muslims make up less than one per- cent of the U.S. population, the terrorist attacks of September 11, 2001 led some Americans to associate Muslims and Islamic law with terror- ism, encouraging many non-Muslims to fear the unknown.8
Although many Americans have reacted to this fear of Muslims by shunning them, such a response is likely to exacerbate tensions; at worst, it could lead to a greater level of Muslim extremism.9 Shunning any group tends to create a feeling within that group of exclusion from the broader society.10 The more excluded a group feels, the more likely some members are to tend toward extremist views.11 Therefore, an in- clusive approach should lead to greater mutual understanding and serve to reduce tensions with the Muslim community domestically and abroad.12
Reversing the trend of attempting to ban the consideration of Sha- ria in American courts would be a strong step in the direction of elimi- nating anti-Muslim bias.13 Attempts to ban Sharia likely violate the U.S. Constitution and are particularly offensive in light of the absence of parallel bans on the consideration of other religious codes in American courts.14 Moreover, Sharia bans violate the voluntary but long-standing principle of comity, which encourages courts to defer to foreign laws where such laws do not prejudice the power or rights of the U.S. gov- ernment or its citizens.15
This Note focuses on this violation of comity and its implications. Part I discusses the history of Muslims in the United States and explains Sharia's origins. Additionally, it describes the basis for anti-Muslim and anti-Sharia sentiments and oudines the most successful attempts to ban Sharia to date. …