NEW YORK (RNS) Foreign law bans are back.

Anti-Shariah demonstrators rally against a proposed mosque near Ground Zero in New York.

Anti-Shariah demonstrators rally against a proposed mosque near Ground Zero in New York.

For the fourth year running, Florida is trying to outlaw the use of foreign and international law in state courts. Missouri has mounted another attempt to pass an anti-foreign law measure after last year’s effort was vetoed by Gov. Jay Nixon. The bans also have crept farther north, making a debut in Vermont.

These laws, which have passed in seven states, are the brainchild of anti-Muslim activists bent on spreading the illusory fear that Islamic laws and customs (also known as Shariah) are taking over American courts. This fringe movement shifted its focus to all foreign laws after a federal court struck down an Oklahoma ban explicitly targeting Shariah as discriminatory toward Muslims.

But, as explained in a report by New York University’s Brennan Center for Justice, by banning all foreign law, the laws create new problems, particularly for American businesses with commercial relationships overseas. To avoid ensnaring routine international commerce, supporters of foreign law bans have added a confusing array of restrictions and exemptions to ensure that only those who are disfavored are targeted.

And as these restrictions pile up, the bans come full circle and reveal their true purpose: to demonize the Islamic faith.

For decades, American courts have applied foreign law as long as it does not violate U.S. public policy. This approach has worked well: Supporters of the bans have yet to point to a single case where foreign law has been used to violate the rights of Americans. U.S. companies are increasingly involved in cross-border transactions, and sometimes prefer to rely on foreign law because it protects their interests. When disputes arise, they count on the courts to respect their choice and apply the appropriate foreign legal principles.

Responding to concerns that these laws would be bad for business, legislators in several states exempted corporations, which were never the intended targets anyway. But this exemption led to even more questions: What about unincorporated businesses? Sole proprietors? When employees take corporations to court, how will the bans affect the proceedings?

To avoid this new set of problems, many foreign law bans — such as the ban in North Carolina and the bill recently introduced in Florida — are expressly limited to family matters. America is a country of immigrants, and this focus on family disputes affects all of us who have relatives overseas, regardless of their faith. For example, Jewish-American couples who marry in Israel, where such marriages and divorces are governed by rabbinic law, could be in trouble in Florida. The bill pending in Tallahassee may prevent courts from recognizing any marriage license, divorce decree or child custody order issued in Israel.

In Missouri, groups that help childless couples adopt from overseas successfully lobbied Nixon to veto the ban last year. But the response has been characteristically insular. Rather than abandon an unnecessary and potentially hazardous measure, Missouri legislators are pressing on with a ban that targets all family matters — except adoptions.

Faiza Patel is the co-director of the Brennan Center’s Liberty and National Security program. Photo courtesy of Brennan Center for Justice.

Faiza Patel is the co-director of the Brennan Center for Justice’s Liberty and National Security Program. Photo courtesy of Brennan Center for Justice.


This image is available for Web and print publication. For questions, contact Sally Morrow.

The motives of those pushing for bans on foreign law become clearer with each limitation. It beggars belief that supporters of these bans are genuinely concerned about the purported ills of foreign law when they are so ready to make concessions. Instead, “foreign law” provides a convenient — and increasingly transparent — fig leaf for supporters to stir up misconceptions and fear about Muslims. Although the legislators leading the charge for foreign law bans have not been shy about their agenda, the state legislators who vote for them for other reasons can no longer pretend they don’t understand what these bans are about.

Nor can the federal government. President Obama has recognized the importance of the role played by all faiths in our democracy and has chastised foreign governments for their treatment of minority religious communities. But he has done little to stem this tide of anti-Muslim propaganda disguised as law. It’s time he took a public stance and condemned these moves as divisive to our democracy.

Amos Toh is a fellow at the Brennan Center. Photo courtesy of Brennan Center for Justice

Amos Toh is a fellow at the Brennan Center for Justice. Photo courtesy of Brennan Center for Justice


This image is available for Web publication. For questions, contact Sally Morrow.

The Department of Justice, too, should drop its passive approach and start examining whether there are federal law grounds for challenging these laws. America’s religious communities should not have to wage this battle alone.

(Faiza Patel is the co-director of the Brennan Center for Justice’s Liberty and National Security Program. Amos Toh is a fellow at the Brennan Center. They are co-authors of “Foreign Law Bans,” a report on the consequences of anti-Shariah law measures.)

KRE/AMB END PATEL

11 Comments

  1. Same people making these laws are also those who would welcome laws driven by the Christian faith. No laws of man should be based on any religious belief as all religious belief poisons the mind of humans.

    • You’re absolutely right about a lot of these guys wanting their own Christian laws imposed on the country. There’s a strong overlap between the dominionism movement and what I call the “Neocrusade” which wants to abolish Islam within the U.S (e.g. see this: http://www.rightwingwatch.org/content/merging-anti-islam-activism-prophetic-dominionism). Their hypocrisy stinks to the high heaven they claim to revere.

    • “All religious belief poisons the mind of humans.” I thought I read something up there about how problematic it is to “demonize the Islamic faith.” Apparently hypocrisy is not limited to those YOU demonize…

      • Re: “Apparently hypocrisy is not limited to those YOU demonize…”

        … except I never said, “All religious belief poisons the mind of humans.” Someone else did. I have nothing to do with that.

        As for believers of various stripes demonizing each other … they seem bound and determined to do so. Who am I to stop them? I get to stand by and observe their escapades. It’s sort of like watching a bunch of kindergartners shouting at each other, “Oh yeah? My dad can beat up your dad any day!”

        Personally, I think they have better things to do with their time and resources … but hey, what can this cynical, cold-hearted, godless agnostic heathen possibly know about such things?

      • Woops, sorry, you weren’t replying to me. I shouldn’t have accused you of that, it just looked that way on screen. Again, apologies.

        As for the part about the kindergartners all squabbling over whose dad can beat up who else’s dad … that pretty much really is what we’re looking at, here.

      • Auggie, I don’t believe in demons, so I certainly didn’t try to demonize anyone. Whatever you might have read “up there” it wasn’t written by me, so it appears you are the only one of us who understands your use of the word hypocrisy.
        I say that all religion poisons the human mind because it requires faith to believe something that has absolutely no evidence. That kind of thinking is irrational, and other than mental illness, religious belief is the only thing that can do that.
        Please tell me, other than mental illness, what would cause a human to believe that a priest can say some words over a glass of wine and plate of crackers and literally turn it into human flesh and blood? Other than mental illness, what would cause a human being to fly an airplane loaded with other humans into a building, killing thousands more humans?
        Only religious belief.
        Religion poisons the mind of humans!

  2. The real tragedy is that the Christians who want these bans actually agree with Shariah in almost every aspect. If they wanted to serve their own interests, they would be forming ALLIANCES with serious Muslims to bring back laws that conform more closely to traditional beliefs. Most laws in America DID conform closely to traditional beliefs until 1960 or so.

    Agitating for a ban serves nobody’s interest. It splits the religious community and gives Satanic atheist “judges” excellent ammunition to destroy all religions.

  3. Even worse these ignorant lawmakers seem to be unaware that religious courts have existed in this country for a very long time and:
    1. Do not ever cover criminal laws
    2. Are protected as a right to contract/enter arbitration
    3. Can’t hand down a judgment which is contrary to existing laws and public policy.

    This is what happens when lawmakers are more informed by bigotry than knowledge or even common sense. Some of the stupidest, most ignorant laws, the ones most corrosive to civil liberties are the ones coming from people with a prejudiced agenda.

  4. Deacon John M. Bresnahan

    There are some that Sharia law is what they fear. But not mentioned here is another aspect of the issue stirred up by Justice Ruth Bader Ginsburg a few years ago.
    At that time she went on a riff about how foreign courts and decisions could and should be used to interpret our Constitution. A lot of people call that virtual treason and has nothing directly to do with opposition to Sharia Law but to do with protecting our constitution from possible harebrained judicial actions. (of which there have been a lot over the centuries).. The Supreme Court of the United States exists to interpret our constitution and laws based on things like legal precedent, etc. The Supreme Court is not supposed to be a conduit for destroying our constitution and creating some sort of international legal system.
    It seems like every time someone wants to protect our laws and culture the media- or others attack those who would protect.

    • You are worrying because you have no idea how the system works. Both the anti-sharia and anti “foreign law” positions are based on ignorance and hysteria.

      Our nation’s legal foundation was (and in many respects still is) British Common Law. Treaties are essentially foreign law which the nation ratifies as its own. We are not ever going to allow states to ignore international treaties recognized by Congress.

      In most cases foreign laws do not even come into play because the systems are different. Continental Europe, its former colonies, Japan and South Korea do not use legal precedent as binding authority. We are only really talking about British, Canadian or former Commonwealth Countries legal precedents.
      Even then, it would only be important if there is a legal situation so novel to US law that there is nothing which can be used for precedence to support a position.

      As for Sharia law, we have religious courts in this nation already and a model as to how they need to function. Religious courts are merely glorified arbitration. In arbitration one contract and willingly chooses the laws to be applied to a civil situation. Free enterprise. A way to allow parties to resolve disputes without using a court, in a fashion both are willing to abide by.

Leave a Reply

Your email address will not be published. Required fields are marked *

Comments with many links may be automatically held for moderation.