Posted by on May 21, 2013 in Blog
By: Abdulaziz A. Al-Alami
The Center for American Progress, along with the Brennan Center for Justice, recently held a discussion on new bills emerging from different states that aim to ban the implementation of international and foreign law in U.S. courts. The discussion was a follow-up to a report released earlier by the Center for American Progress that described the shift in focus, at least on paper, from the earlier explicit attempts to ban Sharia law to more recent attempts to ban international and foreign law.
In 2010, Oklahoma voters approved the “Save Our State referendum”, a ballot initiative that banned the use of Sharia Law in the state’s courts through a constitutional amendment. The measure was challenged by Muneer Awad, a Muslim American who felt prejudiced by the initiative. Awad sued in the case Muneer Awad v. Ziraxis, et al. and won, causing the initiative to be struck down by the 10th circuit court of appeals as unconstitutional, affirming the lower court decision. The rights of the voters were important but could not overcome constitutional protections of the Establishment Clause of the First Amendment.
As a consequence, the backers of this initiative altered the scope of their initiative to remove any specific religious wording (Ex. Sharia) in order to pass muster and not be subject to the strict scrutiny of the Supreme Court for discriminating against people of a certain faith, and to instead call for a ban on the use of foreign and international law.
At least 32 states have now introduced bans on foreign and international law. Arizona, Kansas, Louisiana, Oklahoma, South Dakota and Tennessee have enacted such bills. Such legislation goes against a long-standing practice of U.S. courts to incorporate international law, as per the historic decision in Paquete Habana where the Supreme Court declared that “…international law is part of our law.” The U.S. constitution itself also seems to back this idea by stating that international treaties become the supreme law of the land by virtue of the supremacy clause, meaning that a treaty takes precedence over an act of Congress if it is ratified.
Earlier this month in Florida, an anti-Sharia bill passed in the House, but was one vote short of receiving the two-thirds vote necessary in the Senate to get it out of committee and to the floor for a vote.
Last week, a North Carolina bill that would forbid judges from applying foreign law passed the House after much debate. The backers of the bill, which is meant to prevent the application of Sharia law, argued that Sharia law was used in other states, and they argued that the bill would prevent any constitutional violations in domestic cases and child custody cases. The opponents of the bill argued that these protections already exist in the Constitution.
The Brennan Center found that the bans could very well create new problems. For example, some of the laws would require judges to reject judgments that do not protect rights in the same way the U.S. does. For example, a jury trial is standard in some instances in the US, but nearly unheard of in other countries. Lawmakers may inadvertently complicate such situations.
The bans could also cause disruptions in family life if religious or foreign law decrees are not honored in the U.S. Bans could frustrate religious arbitrations and thwart choice of law in litigation and arbitration. There are also difficulties with enforcing monetary judgments and arbitral awards when a judgment is obtained in another country that does not protect due process in the way the U.S. does.
The laws banning the use of foreign law also violate the separation of powers as legal sourcing is historically left to the judiciary and not the legislature. Some of the bans may cover international law, which historically is the law of the land under the supremacy clause and as declared in Paquete Habana.
The issue is far from over and will continue to spur debate. You can view the filmed discussion sponsored by the Brennan Center for Justice and the Center for American Progress here, an introduction and summary of the report here and the full report here.