Flags are displayed on US Capitol as preparations continue for the second inauguration of US President Barack Obama in Washington on 18 January 2013. Source: JEWEL SAMAD/AFP/Getty Images[/caption]It seems that US lawmakers might not grasp the significance of the recent wave of bans on the application of “foreign law” in US state courts. Such measures have been considered in some form in 32 US states and passed in at least 6, most recently North Carolina, which enacted a ban on the use of foreign law in family cases last week.
There is a hidden subtext to all these bills and Acts, however: Islamophobia motivates the bans almost universally. The trend began in 2010, when voters in Oklahoma approved a ballot initiative to prohibit the application of Shari’a law by their courts. Immediately attacked as prejudiced against American Muslims, the measure was subsequently overturned by a federal appeals court because it “discriminate[d] among religions," and "specifically name[d] the target of its discrimination,” said the judges deciding the case. Not to be deterred, lawmakers across the American heartland set about banning “foreign law” instead of “Shari’a law,” changing the wording just enough to ensure their measures were not struck down the way Oklahoma’s was, and seemingly forgetting the fact the phrase "foreign law" includes not only religious law, but also the laws of other countries and parts of international law that are integral to the smooth operation of international commerce.
But the change of wording has only barely disguised the anti-Muslim motivation in enacting these laws. Almost all of the cases cited by proponents of foreign law bans involve Muslims, often of Middle Eastern descent, and often refer to the religious practices and duties of Muslims outlined in Shari’a codes. That focus comes despite the fact that US courts consider the laws of countries like Britain and other close Western allies far more often than they consider the laws of Shari’a or of Middle Eastern states.
More pointedly, the North Carolina senator who sponsored his state’s recent legislation, E. S. “Buck” Newton, made it clear to the press in the lead up to the bill’s enactment laws week that despite the use of the term “foreign law,” his measure was aimed specifically at Shari’a law.
The result is that US lawmakers are tying themselves and their courts in bizarre and restrictive knots, basically to prevent one legal code from being considered by their courts. These measures are essentially pointless, because US courts have never applied foreign law, merely considered it as evidence—when relevant—before applying applicable state or federal law. Few seem to understand this distinction.
Beyond that admittedly technical point, even some of the friendlier-sounding legislation, such as North Carolina’s recent ban on the application of foreign law in domestic and child abuse cases, has misunderstood how the law works. As a basic principle of law, a US court has never had the authority to reach a decision that contradicts the basic rights enshrined in the US Constitution, and in deciding whether or not to consider foreign law the courts have long had to consider whether or not it would breach US public policy interests. For example, in one of the cases often brought up by those in favor of banning foreign law, even though they appear to have misunderstood the ruling, the Louisiana Supreme Court refused to consider Egyptian child custody law in deciding on the validity of an Egyptian custody order because it felt that law did not sufficiently protect the child. Essentially, North Carolina’s ban was already covered under existing rules.
These laws are beyond pointless, though—they are quite possibly dangerous, not only to individuals’ ability to practice their religion, but even to the basic ability of courts to do their job. Even though these widely-drawn bans on foreign law could potentially prevent the application of a variety of types of law, let us focus on Shari'a as an example, given that is what they are widely understood to be targeting.
Religious freedom is firmly established in US law, and religious principles come up in a variety of cases, from prisoners’ rights to religiously acceptable meals to the ability of a court to enforce a Shari’a-inspired prenuptial (Mahr) agreement or an award from an Islamic arbitration tribunal.
None of these examples would necessarily violate US law. On the contrary: courts may be required to consider whether a prisoner’s constitutional right to practice his or her religion is being sufficiently protected. And under long-established legal principles, an individual has a right to enter into any contract provided that it does not break existing law. Thus a contract might be inspired by Shari’a principles—for example, an agreement to buy an Islamic bond, or the Mahr and Islamic arbitration agreements mentioned above—and still be governed US law, and a court might need to consider Shari’a principles when interpreting the contract when disputes arise.
And in criminal cases where defendants cite their religious principles as a defense, the court is required to hear religiously-inspired defenses: not doing so would be a breach of the constitutional right to due process. As a matter of record, courts have never permitted religious justifications to absolve criminal defendants of guilt.
Even more, courts sometimes have no choice but to consider foreign law when reaching a decision. This comes up quite a bit when a court has to determine the validity of a marriage and, conveniently for us, one of the so-called Shari’a-decided cases proponents of these foreign law bans often seize on involved a question over whether or not the defendant was married. As part of a wider issue, a US court had to determine whether the man, a former resident of Israel, had completed the four-step Islamic marriage process, which would have resulted in a valid marriage under Israeli law. In this, and in many other types of case, there is simply no way for a court to reach a decision without consulting Israeli law.
This wave of bans on the application of foreign law is worrying for two reasons. Anti-Muslim rhetoric is being openly exchanged in state congresses across the country, which is no doubt despicable in its own right. Even more, it is being expressed in favor of unneeded laws that breach the religious freedom of Middle Easterners and Muslims and could very well hamper even the ordinary workings of the US legal system. American lawmakers would do well to consult their own statute books before continuing further along this path.
