“The Hidden Costs of Alabama’s Anti-Foreign Law Measure” by Amos Toh, originally published on Just Security, on December 1, 2014.
On Election Day last month, Alabama became the ninth state to impose onerous restrictions on how its courts can consider and apply foreign and international law. Those concerned about civil liberties and the rule of law need to start paying attention. Similar bans on foreign law have passed in places like Arizona, Kansas, Louisiana and North Carolina, away from the national spotlight. Proponents of these measures ultimately aim to spread stereotypes and fear about the practice of Islam. But the Muslim community may not be their only victims. This state-by-state assault on judicial discretion in international legal disputes also creates a host of uncertainties and problems for Americans with family and business ties overseas—whether or not they are Muslim.
The anti-foreign law movement is the brainchild of a network of anti-Muslim activists whom have sought to characterize Islamic law, or sharia, as a fundamental threat to the US legal system. But there is not a shred of evidence that this is happening, or is likely to happen in the future. The threat apparently posed by foreign law is just as mythical. In general, US courts will recognize foreign judgments or laws as long as they do not violate considerations of public policy. This practice has endured for decades without much fanfare.
While Islam is their eventual target, proponents of foreign law bans have capitalized on general anti-foreign sentiment to disguise their true agenda and attract broader support. This strategy is likely also born out of legal necessity. In 2012, the Tenth Circuit Court of Appeals struck down Oklahoma’s attempt to ban sharia and international law on the basis that it was unconstitutionally discriminatory toward Muslims. In response, Oklahoma and other states passed legislation that did not explicitly reference sharia, but placed sweeping restrictions on the judicial consideration of all foreign laws. This broader reach potentially enables lawmakers to evade charges of discrimination and bias. In public, they hail the bans as a general defense against any unsavory foreign influence. Behind the scenes, however, many of them marshal support for these measures by denouncing sharia as a draconian set of rules that undermines women’s rights and other American values, and its followers as foot soldiers in the battle to take over America’s soul. Yes, the rhetoric is that fiery and hyperbolic.
Some commentators have argued that these restrictions on foreign law have more bark than bite – in some ways, they even resemble existing judicial practice. Nevertheless, their ambiguous phrasing should give one pause. Alabama’s new measure forbids courts from applying or enforcing a “foreign law” when “doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.” This sounds uncontroversial – until one parses the definition of “foreign law.”Under these measures, “foreign law” refers to any “law, rule, or legal code, or system established, used or applied” outside the United States. In other words, courts may be prohibited from enforcing foreign judgments that are perfectly reasonable, simply because they are based on a body of law or originate in another country that does not protect rights in the same way the US does.
Such an interpretation is concerning for American citizens or residents who depend on state courts to recognize a wide range of family and personal agreements that incorporate religious or foreign law. Jewish groups in particular have expressed alarm that the bans might deny Jews their right to organize their marriage, premarital agreements and other personal arrangements according to Jewish law – even when the arrangements themselves do not raise any rights concerns.
Under traditional interpretations of Jewish law, only a man can obtain a divorce (called a “Get”) and give it to his wife. A court enforcing Alabama’s ban might refuse to recognize Jewish divorces that are administered by rabbinical tribunals or originate in Israel because the “Get” tradition might be perceived as discriminatory toward women. Such a general rule ignores whether the specific terms of the divorce before the court are fair and equitable for all parties involved. It would jeopardize legal arrangements flowing from the divorce, including those concerning martial assets, alimony and child custody.
These scenarios are not simply theoretical. In Kansas, a state district court observed in passing that under the state’s foreign law ban, it could not enforce any premarital agreement it considers to be a “product of a legal system which is obnoxious to equal rights.” Such reasoning would effectively require courts to pass judgment on the merits of entire bodies of foreign law or even an entire legal system, regardless of whether these are relevant to the dispute before the bench.
Perhaps wary that foreign law bans might needlessly complicate all contracts, lawmakers have been quick to include exemptions for businesses. This cynical move is yet more evidence of the true motivations of the bans. It might also prove futile: The bans convey an irrational hostility towards foreign law that could deter foreign investment.
There is little doubt that Alabama’s new measure is a potent symbol of discrimination. Less obvious but equally significant is its potential impact on routine uses of foreign law in the courts. Foreign law bans have been derided as a solution in search of a problem. If they continue to spread, they might create thorny problems that are difficult to overcome.