Foreign Law Bans: Legal Uncertainties and Practical Problems
Over the last two years, lawmakers in 32 states have introduced and debated bills seeking to ban foreign, international, and religious laws in state courts. Five states—Oklahoma, Kansas, Louisiana, Tennessee and Arizona—have already enacted foreign law bans and many more are picking up speed. Fueled by a growing tide of anti-Muslim sentiment, these bans create a host of unintended consequences ranging from confusion over how courts should treat marriages, divorces and premarital agreements with religious or foreign origins to uncertainty over how international businesses conduct commercial transactions in the United States.
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A troubling trend is quickly developing in state legislatures across the country: In a thinly concealed attempt to inflame anti-Muslim attitudes, lawmakers in 32 states have moved to ban foreign or international law. The bans are based on model legislation designed by anti-Muslim activist David Yerushalmi, and promoted by activists who have stirred up fears that Islamic laws and customs – commonly referred to as ‘sharia’ – are taking over American courts. Although proponents of these bans have failed to cite a single instance where a U.S. court has relied on sharia to resolve a dispute, foreign law bans have been enacted in Oklahoma, Kansas, Louisiana, Tennessee and Arizona, while a related ban on religious law has been enacted in South Dakota.
Although attacking a problem that does not exist, foreign law bans threaten to create genuine problems of their own. Several of the bans stray from well-established rules that courts follow in applying foreign law. The bans in Kansas and Oklahoma, for example, seem to require judges to reject any foreign law or judgment that comes from a country that does not protect rights in the same way that the United States does. This could have serious unintended consequences for people of all faiths, including:
- Disrupting family life: Marriage licenses, prenuptial agreements, adoption agreements, divorce decrees and child custody orders may not be honored in several U.S. states simply because they are based on a religious creed or foreign law.
- Frustrating religious arbitrations: Since most foreign law bans also apply to arbitration tribunals, they call into question the ability of religious believers to settle family and other personal disputes through arbitration.
- Thwarting choice of law in litigation and arbitration: Commercial parties frequently choose the law of another country to govern how a dispute is resolved. The bans are likely to compel state tribunals to override such a choice in a greater number of cases.
- Difficulties enforcing foreign money judgments and arbitral awards: Parties may experience difficulties when trying to enforce a judgment or arbitral award obtained in another country that does not protect due process and other constitutional rights in the same way that the United States does.
Foreign law bans also raise a host of other issues, including:
- Violating the separation of powers: The separation of powers prevents the concentration of too much power in any one branch of government. Giving state legislatures the power to dictate what legal sources the courts can look at when interpreting the law undermines this fundamental principle of American governance.
- Invalidating court decisions in other states: State courts are bound to give “full faith and credit” to court decisions of other states. A foreign law ban could affect that arrangement when another state has considered foreign laws.
- Banning international law: Some of the bans are so broad that they may cover international law. This body of law is part of the laws of the land under the Supremacy Clause and is treated just like federal law. But the bans pull out this category of law for special scrutiny.
Foreign law bans are currently a solution in search of a problem. However, if these bans become law, states may soon be searching for solutions to the problems they have created.