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More states move to ban foreign law in courts
by Kimberly Railey, USA TODAY
A growing number of states are targeting what they see as a threat to their court systems: the influence of international laws.
North Carolina last month became the seventh state to pass legislation barring judges from considering foreign law in their decisions, including sharia. The bill awaits the signature of Republican Gov. Pat McCrory.
Six other states — Arizona, Kansas, Louisiana, Oklahoma, South Dakota and Tennessee — have already enacted similar legislation since 2010, and at least 26 have introduced such measures, according to The Pew Research Center’s Religion and Public Life Project.
One exception to this trend is Missouri. In June, Missouri Gov. Jay Nixon, a Democrat, vetoed a foreign law bill, saying it would make international adoptions more difficult.
Sharia, or Islamic law, is both a moral code and religious law that governs all aspects of Muslim life, ranging from religious obligations to family relationships. It is derived from the Quran, the main religious text of Islam, and the teachings of Mohammed, the Muslim prophet.
Many of the bills, including North Carolina’s, would apply only in situations in which invoking foreign law would violate a person’s constitutional rights.
“They exist purely to create a conversation around what sharia is,” said Corey Saylor, a spokesman for the Council on American-Islamic Relations.
Advocates of the foreign law bans say they safeguard American constitutional liberties, but critics argue they are unnecessary and could complicate international business and contract law.
The bans could also make it difficult to enforce foreign money judgments and matters of family law, like divorce decrees, that are based on a foreign law or religion, said Matthew Duss, a policy analyst at the left-leaning Center for American Progress.
“We’ll have to wait for the test cases to come, but there are a range of issues in which these bans could create real legal uncertainty,” Duss said.
Supporters of the legislation, including Frank Gaffney, president of the Center for Security Policy, say that Islamic law is slipping into U.S. courts.
“It’s an affront to the Constitution of the United States,” he said, “and detrimental to those whose rights are infringed.”
In the U.S., sharia, like other religious law, can enter court through divorce and custody cases or in commercial litigation, mainly when contracts cannot be settled in a religious setting. But the exact frequency of such instances is hard to measure.
A 2011 report by the Center for Security Policy, a Washington, D.C., think tank, cited 50 examples. However, in many of them, constitutional rights trumped foreign or religious laws in judges’ decisions.
One outlier is a 2010 New Jersey case, where a state court found that a man did not intend to rape his wife because he thought his religion allowed him to have sexual intercourse with her at any time. An appeals court eventually overturned that ruling.
The wave of state action began in Oklahoma in 2010, when a voter initiative to prohibit sharia in state courts passed with 70% of the popular vote. In 2012, a federal circuit court struck down the measure.
In its wake, the laws have been retooled to ban all foreign law in state courts to avoid targeting one religion.
But some still say the legislation can harm faith groups. Debra Linick, a director at the Jewish Community Relations Council of Greater Washington, said foreign law bans could affect religious arbitration used to handle family and personal disputes.
Michael Gerhardt, a constitutional law expert at the University of North Carolina School of Law, said the legislation, particularly North Carolina’s ban, is a solution to a non-existent problem.
“I simply cannot imagine any state court would recognize sharia to defeat a federal constitutional right,” Gerhardt said.
© 2013 USATODAY.com