JURIST Guest Columnist Steven Schwinn, of The John Marshall Law School, discusses the growing problem in states to ban the use of foreign and international law…
There is a growing trend in the states to ban the use of foreign and international law, including Sharia law, in state courts. At least seven states have enacted measures to prohibit their courts from considering foreign and international law and many others are considering such a ban. But despite the lofty rhetoric of supporters, these bans can do nothing that state law does not already do. The bans do not protect against the undue influence of foreign or international law upon our own domestic law and they do not protect against any real threat to individual rights. At their best, they are a solution in search of a problem. At their worst, however, they alienate politically unpopular groups and gratuitously condemn their beliefs.
The trend started in Oklahoma when, in 2010, Oklahoma voters approved the “Save Our State” constitutional amendment. The amendment banned the use of international law and foreign law in Oklahoma courts; it singled out Sharia law for particular disapprobation. It provided that “[t]he courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law.”
The US Court of Appeals for the Tenth Circuit roundly struck the amendment in Awad v. Ziriax [PDF]. The court ruled that the ban on Sharia violated the Establishment Clause because the ban discriminated among religions without a compelling interest—or without any interest, for that matter. Indeed, the court noted that defenders of the amendment could not identify a single instance when an Oklahoma court applied Sharia law or other foreign law, much less an instance when such application resulted in a concrete problem for the state. But even if the state could identify an interest, the court said that the amendment was so crude that it could not “closely fit” any interest, anyway. The plaintiff’s case illustrated why: Awad claimed, among other things, that the ban on Sharia would prevent Oklahoma courts from probating his will, which contained references to Sharia law. Before the amendment, state courts would have probated Awad’s will, including its references to Sharia, so long as it did not violate public policy. But after the amendment, the courts could not have considered Sharia law at all, even as part of Awad’s will. It is hard to see how that result serves any purpose.
If Awad’s will does not persuade you, though, here is another example. Suppose a man and a woman were married in a country that recognizes marriages based on religious law. Suppose further that the marriage is unobjectionable as a matter of public policy. (For example, the marriage does not involve more than two people.) Now suppose that the couple moved to Oklahoma and tried to get the Oklahoma courts to recognize their marriage (for any number of different reasons that a marriage might be relevant under Oklahoma law). “Save Our State” would prohibit the courts from considering the foreign law under which the couple was married and by extension the marriage itself. Again: it is hard to see how that result serves any purpose.
So advocates changed their strategy. They moved away from explicit bans on Sharia and introduced model legislation called American Laws for American Courts, or ALAC. ALAC sharpens the “Save Our State” model by limiting the ban to “foreign law” (and not specifically mentioning Sharia). It also limits the ban to those instances “when the application of a foreign law will result in the violation of a right guaranteed by the constitution of this state or of the United States …” And it exempts corporations and religious organizations. ALAC affects the ban in a roundabout kind of way: it says that any court ruling that relies in whole or in part on any law that would grant the parties anything less than full state and US constitutional rights is a violation of public policy.
But this is exactly why ALAC is a belt over state-law suspenders. State law already bans the use of extraterritorial law, including the law of other nations and the law of other states, when that law violates state public policy. In particular, the traditional rule of comity includes a public policy exception, which says that state courts do not grant comity when doing so would violate public policy. And of course it goes without saying that state courts cannot violate state or federal constitutional rights, whether they rely on domestic, foreign or international law. In other words, ALAC incorporated the qualifiers and exceptions that were necessary to navigate the legal and practical problems in “Save Our State.” But those necessary qualifiers and exceptions ate up any substance that was in the ban in the first place. The whole experience of ALAC—its long and cumbersome qualifiers, its reaction to the court’s ruling in Awad and its reaction to the practical problems created by a broadside ban on foreign law-is why a ban on foreign law is at best unnecessary.
ALAC also pulls no weight in the important debates over the use of foreign and international law in US constitutional construction. Serious and thoughtful judges, scholars and lawyers disagree about the relevance of foreign and international law in interpreting and constructing the US Constitution. But ALAC contributes nothing to this debate, either directly or indirectly. (Indeed, when courts have used foreign or international law in US constitutional construction, they have used it to protect and enhance individual rights, not to limit them. That is ALAC’s goal (or at least its stated goal), too.) In matters of constitutional construction, ALAC is at best irrelevant.
But in truth ALAC is worse than unnecessary and irrelevant; it is harmful and divisive. That is because it contains the same gratuitous anti-Islam intention as “Save Our State.” According to the American Public Policy Alliance, which spearheads ALAC, ALAC is designed as a bulwark against Sharia law in American courts, even if ALAC itself does not specifically mention Sharia. Yet for all the blustering, advocates for ALAC have yet to identify a single instance when a court has applied foreign law, including Sharia law, in a way that created problems. They have not even coherently explained how such problems might arise, especially in light of the existing public policy exception to the general comity rule.
“Save Our States,” ALAC and other attempts to restrict the use of foreign law in domestic courts are solutions in search of a problem. At their best, they do what the law already allows and requires. At their worst, they reveal an ugly underside of law and politics that seems calculated only to alienate and disempower certain disfavored peoples and to condemn certain disfavored faiths.
Steven D. Schwinn is an Associate Professor of Law at The John Marshall Law School in Chicago, where he teaches Constitutional Law and co-directs the International Human Rights Clinic. Schwinn is also co-editor of the Constitutional Law Prof Blog.
Suggested Citation: Steven D. Schwinn, Anti-Sharia Laws: A Solution in Search of a Problem , JURIST – Academic Commentary, March 18, 2015, http://jurist.org/academic/2015/03/steven-schwinn-sharia-laws.php.
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