Foreign Law Bans Demonize Islamic Faith

May 24, 2013

You probably stopped paying attention to the anti-sharia movement in America a few years ago, right around the time the federal courts were beginning to block the first wave of sharia bans from taking effect. Of course, you probably thought at the time, any law that expressly disapproves of the tenets of a particular group’s faith violates the First Amendment’s Establishment Clause. Of course, you figured, the federal judiciary isn’t going to countenance state efforts to restrict which legal principles judges may or may not consider in adjudicating cases.

But after you turned away from this issue a funny thing happened. It didn’t just disappear into the mist of history. Instead, the political forces that endorse these measures, the same folks who believe our nation’s legal systems are in jeopardy of being overrun by sinister foreign influences, have refined the text of the laws they seek to implement. Shrewdly, they have made implicit the anti-Muslim sentiment that was once explicit in these measures. And they are succeeding, at least for now, at least until the next wave of judgments come from the federal courts.

Six states have imposed “foreign-law” bans since 2010, the year the movement saw its first success. Three others, North Carolina, Missouri, and Alabama are on the verge of doing so, and Texas, Alabama, and Iowa may be on deck next. These measures ban the use of foreign or international law in legal disputes, do so in a way that goes beyond what the U.S. courts have so far recognized, and unwisely burden unequipped state court judges to become detailed arbiters of foreign legal principles. The irony is striking — measures that seek to preclude the influence of foreign law in domestic courts require judges to more intensely interpret foreign legal principles.  

Last week, in a trenchant and timely report, the Brennan Center, in conjunction with the Center for American Progress, released a report about all of this titled “Foreign Law Bans: Legal Uncertainties and Practical Problems.” The report concludes that this new wave of foreign-law bans are still anti-Muslim in their intent — a carefully choreographed series of measures designed to achieve anti-Muslim goals using neutral statutory language. Here’s a paragraph that cuts to the essence of the conclusions reached by the Report’s authors Faiza Patel, Matthew Duss, and Amos Toh:

Although packaged as an effort to protect American values and democracy, the bans spring from a movement whose goal is the demonization of the Islamic faith. Beyond that, however, many foreign law bans are so broadly phrased as to cast doubt on the validity of a whole host of personal and business arrangements. Their enactment could result in years of litigation as state courts struggle to construe what these laws actually mean and how they interact with well-established legal doctrines. The legal uncertainties created by foreign law bans are the reason why a range of business and corporate interests as well as representatives of faith communities have mobilized against them. The American Bar Association, the country’s largest and most respected association of legal professionals, has also passed a resolution opposing the bans.

These deficiencies ultimately will catch up to these measures. The courts will not stand for them. But in the meantime these laws will impose enormous costs upon the citizens of the states that have enacted them, including those citizens who believe, as so many others do, that these laws represent a solution in search of a problem. I asked Patel earlier this week to give me a sense of what surprised her in her research on the topic. And her response in turn surprised me. One of the revelations, she said, was the way state lawmakers have shielded corporations from the burdens of the new laws:

While state legislatures recognized that foreign law bans would create huge problems for cross border transactions, they don’t seem to be too worried about the consequences for individuals who marry, divorce, or adopt abroad. Several of the bans exempt corporations and thus take care of many business concerns. But none address the concerns of American families and some (like the bill that just passed the NC house) specifically target family law.

Patel also told me she was surprised at the degree to which state lawmakers who have endorsed these measures are (evidently) confused about traditional rules governing the use of foreign law in American courts — and about how the new anti-sharia measures so significantly undermine them. She told me:

The current rule (followed by our courts for decades) is that the court will apply foreign law so long as it does not violate public policy. The bans prevent courts from applying foreign law unless it complies with U.S. and state constitutions. At first glance, this sounds right: What business does a court have in enforcing something foreign that violates a citizen’s constitutional rights?

But bans like those passed in Kansas and Oklahoma do not stop there: they go as far as to ban courts from enforcing laws and judgments that come from any legal system that does not protect rights in the same way the United States does. This sweeping proposition could create havoc for Americans who marry and divorce abroad according to the laws of another country…France doesn’t use juries for civil cases. Does that mean that a court in a state where juries are constitutionally required can refuse to recognize a French judgment?

As the report implies, what is happening today with these foreign-law bans is what happens frequently in our short-attention-span nation. We briefly acknowledge and confront efforts like this, render our judgments, and quickly move on. We think the matter is taken care of and we focus on the next new thing. But those in movements like this don’t move on. They adapt. They press on. They press for advantages with our politicians and our judges. Our distraction is their cover. It’s not that these foreign-law bans are here to stay. It’s that the effort to rid ourselves of them is going to be far tougher than many of us ever could have imagined.