So-called “Application of Foreign Law” legislation – a type of neutrally worded anti-Sharia bill - is based on the unfounded conspiracy theory that Muslims seek to infiltrate the American court system. Ten Foreign Law bills have already been filed in state legislatures for 2014. And six states have these laws on the books, plus a constitutional amendment is on Alabama’s next statewide ballot.
Generally speaking, these bills prohibit a court, arbitrator or mediator from considering laws of other nations or religious laws that are in any way inconsistent, even technically, with federal or state constitutions. At first glance, this prohibition may have a knee-jerk appeal. But no foreign body of law is completely compliant with all constitutional requirements, including English law on which the U.S. legal system is based. For that reason, these bills specifically exempt English law – thereby exposing their fallacy.
In a global economy, U.S. courts regularly consider foreign law, including religious law, without issue because strong legal safeguards are already in place. They and other legal bodies are prohibited from applying foreign law in any way that is fundamentally unfair or would entangle the state with religion.
Aside from being unnecessary, Foreign Law bills are harmful to religious freedom. For instance, they effectively bar observant Jews in the U.S. from using religious tribunals (Bet Dins) to arbitrate their divorces, as well as prohibit recognition of Israeli divorce of Jews all of which are issued by Bet Dins. Certain Christian religious arbitration or mediation could be negatively impacted by Foreign Law bills. And broadly worded bills could interfere with the internal governance of the Catholic Church and other religious institutions.
These bills also raise serious constitutional issues, including federal preemption, separation of powers, freedom to contract and interference with foreign affairs. For these and other reasons the America Bar Association is on record opposing Foreign Law legislation.
State legislatures should not be wasting their time and taxpayer dollars on Foreign Law bills. They are the proverbial solution in search of problem that codify camouflaged anti-Muslim bigotry and harm the rights of others.