Crossposted from the Raleigh News & Observer.
This week, the Concerned Women for America of NC – a conservative group with a history of anti-Muslim incitement – briefed North Carolina’s legislature on the phantom threat that Islamic laws and customs (commonly referred to as “sharia”) pose to the American legal system. This briefing came on the heels of House Bill 695, a ban on foreign law that was approved by the House last month.
Although the ban is packaged as an effort to protect the rights of North Carolinians from all foreign laws, it is fueled by a fringe anti-Muslim movement bent on demonizing the Islamic faith. But HB 695 is more than just an attack on the Muslim community. It will also create a series of damaging, unintended consequences for North Carolinians of all faiths.
The foreign law ban before the Senate purports to stop the state’s courts from applying foreign law in family law proceedings if doing so violates constitutional rights.
Sounds harmless, right? It’s not.
For decades, American courts have applied foreign law so long as it does not violate U.S. public policy. International business disputes end up in our courts all the time. Americans who marry abroad or adopt children overseas rely on our courts to recognize these relationships. Courts follow this rule because it helps Americans – it makes international relationships, both business and personal, easier.
The respect that our courts show for foreign law is not a one-sided affair; we want other countries to respect the judgments of our courts as well. In an increasingly interconnected world, the advantages of the current system cannot be overstated.
This system has worked well for decades, and supporters of the ban have not pointed to a single case where foreign law has been used to violate the constitutional rights of North Carolinians. But the proposed law would upend this carefully calibrated approach.
As detailed in a new study by the Brennan Center for Justice and the Center for American Progress, these types of laws actually go beyond requiring that our courts respect state and federal constitutions (which they are required to do anyway), in ways that are likely to create genuine problems.
HB 695 bans North Carolina courts from applying “any component of a [foreign] legal system” that violates U.S. or state constitutional rights. In other words, it tells courts to reject any law or judgment from a country that does not protect rights in the same way we do. This would mean that a North Carolina court faced with a run of the mill case – such as whether to recognize a prenuptial agreement from France – would have to evaluate whether the French legal system complies with the federal and North Carolina constitutions. Courts shouldn’t be concerned with passing judgment on a foreign system as a whole, but rather with deciding the case before them.
The issue only gets more complicated when you throw religion into the mix. Take marriages performed in accordance with an individual’s religious beliefs. Should a North Carolina court asked to recognize a Jewish or Muslim marriage pass judgment on the entire faith? Wouldn’t that involve courts in the types of religious matters that we generally require them to avoid?
Of course, courts must – and do – consider whether a religious marriage demonstrates certain basic characteristics: for example, whether both husband and wife freely consented to the marriage, and whether the legal documentation is in order. But asking them to do more is opening the door to myriad problems.
The law would cast a cloud of uncertainty over the personal lives of North Carolinians who have family relationships overseas. The implications of a court not recognizing a foreign marriage can be enormous: a person could lose lower tax rates, immigration benefits for a foreign spouse and the ability to make life-and-death decisions on behalf of a spouse in medical emergencies. If a divorce is not recognized, a person wouldn’t be able to remarry. Rights to marital assets, alimony and child custody would also be in jeopardy.
The effort to ban foreign law is motivated by an imagined threat, but it creates a host of very real problems. That’s why Florida recently rejected an attempt to pass a similar law and the governor of Missouri vetoed one. North Carolina should follow suit and reject this harmful and unnecessary bill.
Faiza Patel is co-director of the Liberty and National Security Program at the Brennan Center for Justice. Amos Toh is a Fellow at the Brennan Center for Justice.