According to a recent Wall Street Journal article, there are 20 states working on legislation which would prohibit foreign laws from infiltrating state court decisions. Without directly stating as much, the laws are seen as a ban and attack on Sharia law. Encompassing moral and religious principles of Islam, Sharia law is the legal system of many Muslim nations. Sharia law has found its way into American court rooms mainly in divorce and child custody cases. Opponents to the proposed legislation, claim that the laws are “unnecessary, unconstitutional and motivated by anti-Muslim bigotry.” A member of the Council on American-Islamic Relations claimed that the only goal of the proposed legislation was to “target Islam.” A federal appellate court in Denver agreed, holding that barring the use of Sharia and foreign law generally, violates the U.S. Constitution’s establishment clause which prohibits giving special treatment to one religion over others. However, this holding does not answer the primary question of whether or not a court should allow foreign or religious laws to decide a case in a U.S. courthouse in the first place. Would the holding allow contracting parties to select Sharia law as the choice of law to be applied in the event of a dispute?
Personally, I believe this legislation reflects a substantial misunderstanding of how international law and foreign law “influences” U.S. domestic law on the part of its backers both in and out of the legislature. Rather, it seems to me that this legislation is motivated by a conspiracy-theory-minded, conservative establishment that sees the influence of international law and foreign law on domestic law, and the influence of international and foreign culture on America in general, as a threat.
All the same, more scrutiny of the specific legislation is necessary before jumping to conclusions regarding its constitutionality and appropriateness. But, when Bob Marshall, a delegate in the Virginia Legislature says that he decided to introduce a bill banning foreign law in Virginia state court after “[he] heard concerns from people when [he] went door-to-door last year about foreign influence in U.S. law,” I cannot help but question the legislation’s appropriateness.
http://online.wsj.com/article/SB10001424052970204662204577199372686077412.html
I was a little unclear about the issues and wrote to my Islamic law professor, Prof. Abed Awad, to ask if he could clarify them for me. He directed me to his website, http://Shariainamerica.com/, which actually addresses this topic. Banning such “foreign law” is illegal, in fact. It’s unconstitutional, with the 10th Circuit recently holding that the Oklahoma ban on shari’a would likely violate the First Amendment, and unnecessary: no such “foreign” or “religious” law would ever displace the Constitution. Ultimately, he finds this effort to force foreign law out of U.S. courts “absurd:” “The only explanation is that they appear to be driven by an agenda infused with hate, ignorance and Islamophobia intent on dehumanizing an entire religious community.” I have to agree.
This sounds like nothing more than fear mongering and veiled racism against Muslims (no pun intended). I have never once heard of a court system in the United States applying any law other than those proscribed by state or federal legislatures. This all seems like an awfully big waste of time and nothing more than pandering on the parts of politicians.
The Constitution of the United States and Congressional legislation, so long as it is not in contravention with the Constitution, are the supreme law of the land. These laws should trump any and all foreign law. Application of foreign law within the United States is gaining acceptance (see http://www.huffingtonpost.com/2010/07/30/ruth-bader-ginsburg-elena-kagan-foreign-law_n_666025.html). This is dangerous because, unlike laws passed by the U.S. Congress (with some debatable exceptions), foreign law need not comport with the limitations and protections of the U.S. Constitution.
I’m seeing a split of two issues here. The first inquiry is one of legitimacy: whether foreign law has (or should have) a place in the creation, interpretation, or application of law in the United States. On this query, I have to disagree with Brian. There have been many instances where the reasoning of domestic judicial decisions is buttressed with reference to foreign law. Take Roper v. Simmons as an example. In Roper, the Supreme Court specifically noted that no other country supported the practice of sentencing juveniles to death.
The second inquiry, as the comments above point out, is whether this recent wave of legislation seeking to ban the use of foreign law (namely Sharia law) in U.S. courtrooms is simply a political tool wielded to capitalize on Islamophobia. Pace Law Professor Alex Greenawlat discusses this issue during a recent cable TV interview with “Today’s Verdict” (http://www.bronxnet.org/tv/bronxlegal/viewvideo/1314/todays-verdict/todays-verdict–feb-22-2012).