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Foreign Law Bans

Legal Uncertainties and Practical Problems

Faiza Patel, Matthew Duss, and Amos Toh May 2013

WWW.AMERICANPROGRESS.O


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Foreign Law BansLegal Uncertainties and Practical Problems

Faiza Patel, Matthew Duss, and Amos Toh May 2013

COVER PHOTOThe Rev. Daniel Rosemergy, a minister with the Greater Nashville Unitarian Universalist Congregation and a board member o the MiddleTennessee Interaith Alliance, speaks on Tuesday, March 1, 2011, at a press conerence in Nashville, Tenn., in opposition to a legislativeproposal that would make it a elony in Tennessee to ollow some versions o the Islamic code known as Shariah.

*Authors note, May 23, 2013: This report has been updated to reect the new anti-oreign law bill that

recently passed the North Carolina House.


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A troubling trend is quickly developing in state legislatures across

the country: In a thinly concealed attempt to iname anti-Muslim

attitudes, lawmakers in 32 states have moved to ban oreignor international law. The bans are based on model legislation

designed by anti-Muslim activist David Yerushalmi and promoted

by activists who have stirred up ears that Islamic laws and cus-

tomscommonly reerred to as Shariaare taking over Ameri-

can courts. Although proponents o these bans have ailed to cite

a single instance where a U.S. court has relied on Sharia to resolve

a dispute, oreign law bans have been enacted in Oklahoma,

Kansas, Louisiana, Tennessee, and Arizona, while a related ban on

religious law has been enacted in South Dakota.

Although attacking a problem that does not exist, oreign lawbans threaten to create genuine problems o their own. Several

o the bans stray rom well-established rules that courts ollow

in applying oreign law. The bans in Kansas and Oklahoma, or

example, seem to require judges to reject any oreign law or judg-

ment that comes rom a country that does not protect rights in

the same way that the United States does. This could have serious

unintended consequences or people o all aiths, including:

Disrupting amily lie: Marriage licenses, prenuptial agree-

ments, adoption agreements, divorce decrees, and child cus-

tody orders may not be honored in several U.S. states simply

because they are based on a religious creed or oreign law.

Frustrating religious arbitrations: Since most oreign law

bans also apply to arbitration tribunals, they call into ques-

tion the ability o religious believers to settle amily and other

personal disputes through arbitration.

Thwarting choice o law in litigation and arbitration: Com-

mercial parties requently choose the law o another country

to govern how a dispute is resolved. The bans are likely tocompel state tribunals to override such a choice in a greater

number o cases.

Difculties enorcing oreign money judgments and

tral awards: Parties may experience diculties when try

to enorce a judgment or arbitral award obtained in anocountry that does not protect due process and other con

tional rights in the same way that the United States doe

Foreign law bans also raise a host o other issues, includin

Violating the separation o powers:The separation o

ers prevents the concentration o too much power in any

branch o government. Giving state legislatures the pow

to dictate what legal sources the courts can look at whe

interpreting the law undermines this undamental princ

American governance.

Invalidating court decisions in other states: State cou

bound to give ull aith and credit to court decisions o

states. A oreign law ban could aect that arrangement w

another state has considered oreign laws.

Banning international law: Some o the bans are so bro

that they may cover international law. This body o law is

o the laws o the land under the Supremacy Clause and

treated just like ederal law. But the bans pull out this ca

o law or special scrutiny.

Foreign law bans are currently a solution in search o a pro

I these bans become law, however, states may soon be se

ing or solutions to the problems they have created.

Quick Facts


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1 Introduction and summary

5 From anti-Sharia measures to oreign law bans

9 International and oreign law in American courts

15 New wave o oreign law bans: Legal uncertainties

25 New wave o oreign law bans: Practical problems

33 Discriminatory impact o oreign law bans

37 Conclusion

39 About the authors and acknowledgements

41 Appendix

49 Endnotes

Contents


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Introduction and summary | www.americanprogress.

Introduction and summary

Over he pas wo years, a number o sae legislaures have moved o ban he

use o oreign or inernaional law in legal dispues. As o he dae o his repor,

lawmakers in 32 saes have inroduced and debaed hese ypes o bills.1 Foreign

law bans have already been enaced in Oklahoma, Kansas, Louisiana, ennessee,

and Arizona, while a relaed ban on he enorcemen o any religious code has

been enaced in Souh Dakoa.2 Mos recenly, inensive campaigning by he

Ani-Deamaion League and religious reedom groups resuled in he deea o

a proposed oreign law ban in Florida.3 Bu a leas six saes are poised o passsimilar measures in 2013 and 2014: Missouri, Norh Carolina, exas, Alabama,

Souh Carolina, and Iowa.4 able 1 below illusraes he ani-oreign law move-

men across he counry.

Alhough packaged as an eor o proec American values and democracy, he

bans spring rom a movemen whose goal is he demonizaion o he Islamic

aih. Beyond ha, however, many oreign law bans are so broadly phrased as o

cas doub on he validiy o a whole hos o personal and business arrangemens.

Teir enacmen could resul in years o liigaion as sae cours sruggle o con-

srue wha hese laws acually mean and how hey inerac wih well-esablished

legal docrines. Te legal uncerainies creaed by oreign law bans are he reason

why a range o business and corporae ineress as well as represenaives o aih

communiies have mobilized agains hem. Te American Bar Associaion, he

counrys larges and mos respeced associaion o legal proessionals, has also

passed a resoluion opposing he bans.5

Te mos vocierous proponens o oreign law bans are a small nework o aciv-

iss who cas Muslim norms and culure, which hey collecively and inaccuraely

labeled as Sharia law, as one o he greaes hreas o American reedom since heCold War.6 Ground zero or his eor was Oklahoma, and he lessons learned

here provided a emplae or ani-Sharia eors in oher saes. On Elecion Day

2010 Oklahoma voers overwhelmingly approved he Save Our Sae reerendum,

a ballo iniiaive ha banned he use o Sharia in he saes cours.7 While he

Foreign law ban

have already

been enacted

in Oklahoma,

Kansas, Louisian

Tennessee, and

Arizona, while a

related ban on t

enorcement o

any religious co

has been enacte

in South Dakota


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2 Center or American Progress | Foreign Law Bans

Oklahoma measure was immediaely challenged in cour, and ulimaely sruck

down as unconsiuionally discriminaory oward American Muslims,8 is propo-

nens launched a naionwide movemen o recas ani-Sharia measures as bans on

oreign and inernaional law. Tis involved removing specic reerences o Islam

in order o help he measures pass legal muser and successully apping ino deep-

rooed suspicions abou he inuence o oreign laws over he American legalsysem. While he inen o oreign law bans is clear,9 proponens o hese bans

hope ha he oreign law veneer will save he measures rom being invalidaed on

consiuional grounds.

FIGURE 1

Foreign law bans across the United States

Enacted

Introduced in 2013

Other states to watch

Source: Various news media.


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Introduction and summary | www.americanprogress.

Mos oreign law bans are craed so ha hey seem o rack he rules normally ol-

lowed by cours when considering wheher o apply oreign law. Sae cours con-

sider drawing upon oreign law in siuaions ranging rom conrac dispues where

he paries have seleced he law o anoher naion as conrolling, o cases where

he validiy o a marriage or cusody arrangemen concluded in anoher counry

are quesioned. And sae cours rouinely apply oreign lawprovided i does noviolae U.S. public policy. Sae cours, or example, will no recognize polygamous

marriages, which are permited in some Muslim counries, and mos o hem will

no recognize marriages beween same-sex couples, which are permited in many

European counries. While cases involving oreign law occasionally impinge upon

American public policy concerns, mos are quie unconroversial. A ypical case

involving oreign lawdescribed by U.S. Supreme Cour Jusice Anonin Scalia

in a recen speechwould be one where he Cour, or example, was called on o

decide wheher a corporaion organized in he Briish Virgin Islands was a ciizen

or subjec o a oreign sae.10 Te answer o he quesion depended on English

law, and so he Cour naurally looked o ha body o law, said Jusice Scalia.

Te very premise o oreign law bans, however, is ha law ha comes rom ouside

he Unied Saes is somehing o be eared. Te bans depar sufcienly rom

curren pracice and jeopardize well-esablished rules regulaing he applicaion o

oreign law in American cours. Several o he bans sugges ha he use o oreign

law is prohibied no only when he law a issue in a paricular case is a variance

wih consiuional values, bu also when he legal sysem o he counry rom

which he law emerges is isel no in conormiy wih hese values. Ta is o say

laws rom counries ha do no proec righs in he same way ha he Unied

Saes does should be prohibied in U.S. cours. Kansas, or example, prohibis

sae cours rom relying on oreign laws rom any sysem ha does no gran

he same measure o righs provided under he U.S. and Kansas consiuions.

Te ani-oreign law bill ha was recenly signed ino law in Oklahoma,11 as well

as bills under consideraion in Missouri12 and Iowa,13 are similar in scope. By

essenially engaging sae cours in wholesale evaluaions o oreign legal sysems,

hese bans open up he ype o broad inquiry ha is inimical o he case-by-case

approach ypically applied by American cours.

Trough a deailed examinaion o he ani-Sharia movemen and a look a howU.S. cours have radiionally approached oreign and religious law, his repor

shows ha he oreign law bans are boh ani-Muslim in inen and hrow ino

quesion he saus o a range o conracual arrangemens involving oreign and

religious law. Te repor begins by explaining how he ani-Sharia movemen


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evolved ino an ani-oreign law campaign in order o avoid he paenly unconsi-

uional pracice o explicily argeing Muslims.

I nex explains he role o oreign and inernaional law in American cours and

he dierence beween he wo. Te inernaional law o which he Unied Saes

subscribesor example, reaies raied by he Senaeis par o he law o heland by virue o he Supremacy Clause o he Consiuion. Foreign law, on he

oher hand, is he domesic law o oher counries and is used by American cours

only where is applicaion does no violae public policy. Tis secion explains ha

while he use o oreign sources in consiuional inerpreaion is holy conesed,

he consideraion o oreign law in everyday dispuessuch as hose involving

conracsis largely unconroversial and ha cours have long used careully cali-

braed ools o ensure ha applicaion o oreign laws does no violae U.S. policy.

We hen urn o he specics o he oreign law bans and demonsrae ha some

bans are inconsisen wih he pracice o U.S. cours and ha all bans creaeuncerainy abou how non-U.S. legal sources will be reaed. Te oreign law bans

also raise serious quesions under separaion o powers principles, as well as he

Full Faih and Credi and Conrac clauses o he Consiuion. Te repor nex

deails he possible disrupive consequences o oreign law bans, paricularly or

American amilies and businesses, and hen uncovers he rue purpose o oreign

law bans. Simply pu, i is o arge Muslims. Based on his conex, we argue ha

he bans are vulnerable o challenge under he Firs Amendmen and several sae

consiuions as unduly burdening he ree exercise o religion.

Te repor concludes by recommending ha sae legislaures considering such bills

should rejec hem, and hose ha have passed oreign law bans should repeal hem.

Te bans se ou o cure an illusory problem bu could creae a myriad o uninended

real ones. Tese bans, moreover, send a message ha a sae is unrecepive o oreign

businesses and minoriy groups, paricularly Muslims. And, as his repor deails,

hese bans sow conusion abou a variey o personal and business arrangemens.

Te issues raised by oreign law bans may lead o decades o liigaion as sae cours

examine heir consequences and sruggle o inerpre hem in ways ha avoid consi-

uional concerns and discriminaion agains all minoriy aihs.


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From anti-Sharia measures to oreign law bans | www.americanprogress.

From anti-Sharia measures to

foreign law bans

The anti-Sharia movement

Te ani-Sharia movemen is he brainchild o a small group o ani-Islam aciv-

iss led by Arizona-based lawyer David Yerushalmi who argue ha Sharia is a

oaliarian ideology ha undermines consiuional values.14 Tey cie he mos

draconian inerpreaions o Sharia o soke ears ha, should Sharia ever inlrae

American cours, women will be orced o wear veils, hieves will have heir hands

cu o, and women will be soned o deah or adulery.15

Tese claims grossly mischaracerize boh he meaning and pracice o Sharia.

Sharia encompasses he eachings o he Koran, he Sunnahhe behavior and

sayings o he Muslim Prophe Mohammedand he inerpreaions o Muslim

scholars over cenuries.16 Te basic enes o Sharia would be amiliar o any

Chrisian or Jew: aih in a single god, prayer, chariable giving, and asing. Bu, as

explained in a recen repor by he Insiue or Social Policy and Undersanding,

Sharia, similar o any oher religious radiion, is deeply conesed and inerpreed

and praciced in dieren ways.17 While cerain versions o Sharia are undoub-

edly inimical o American consiuional values, reaing hese versions as he only

auhenic undersanding o Islamhe religion o more han a billion people

around he worldboh ignores he diversiy o inerpreaions o Islam and cass

suspicion on all Muslims.18

Te ani-Sharia movemen also disors how U.S. cours rea Sharia and oher

religious codes such as Caholic canon law and Jewish law. Many persons o

aihincluding Muslims, Jews, and Caholicsarrange heir everyday lives

according o religious laws and cusoms. Tese arrangemens include amily ma-

ers such as marriages, divorces, and adopions, as well as commercial aairs suchas personal- and business-nancial ransacions.

Dispues arising rom such conracual arrangemens are rouinely setled by

U.S. cours as long as hey can do so according o neural principles o law.19 No


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U.S. cour, or example, will enorce an agreemen saing ha upon divorce, one

spouse is o pay he oher a sum o money o be calculaed according o he princi-

ples o he orah or he Koran. An agreemen speciying he paymen o $100,000

upon divorce is anoher mater, however. And even i i reecs a religious obliga-

ion, such an agreemen will be enorced i i ullls he requiremens ha apply

o all premarial agreemens.20

Likewise, when individuals choose o ake amilyand propery dispues o religious arbiraion insead o he cours, hey may ask

or he cours help o enorce an arbiraion agreemen or award.21 Alhough U.S.

cours ake exra care no o be involved wih he docrinal meris o he underly-

ing religious dispue, hey largely rea religious arbiraion cours as hey rea

any oher arbiraion panel.22

Despie his longsanding approach o handling conracs based on religious law,

he ani-Sharia movemen has srained he bounds o ruh in is eor o dem-

onsrae ha he religious radiions o Muslims in paricular hreaen America.23

In June 2011 he Cener or Securiy Policya group ounded by ani-Muslimacivis Frank Ganey and where Yerushalmi serves as general counselissued a

repor assering ha, Shariah law has enered ino sae cour decisions, in con-

ic wih he Consiuion and sae public policy.24 Te repor lised he op 20

such cases as proo ha some judges are making decisions deerring o Shariah

law even when hose decisions conic wih Consiuional proecions.25

Forunaely, none o his is rue.

Reviewing he ani-Sharia movemens purpored evidence, including is lis o

he so-called op 20 cases, Mathew Franck, a legal analys a he conservaive

Naional Review, concluded:

Tiry-ve years worh o American law, and we have a whopping seven cases in

which some oreign law was honored (no even Sharia in every case), and no

enough inormaion even o ell i somehing ruly unjus happened in any o he

seven. In he oher hireen cases, Sharia-law principles were rejeced eiher a

rial or on appeal. 26

Te wo cases mos requenly cied by he ani-Sharia movemen illusraeFrancks conclusions. Te rs involved a Moroccan couple living in New Jersey.

Te wie alleged ha her husband had repeaedly raped her and sough a resrain-

ing order. A sae cour judge denied her reques parly based on he view ha

under Sharia law here was no concep o sexual assaul wihin a marriagea doc-


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From anti-Sharia measures to oreign law bans | www.americanprogress.

rine ha a handul o U.S. saes accep as valid sill oday.27 Te appellae cour

promply reversed he ruling, rmly rejecing he deendans reliance on religious

belies as a jusicaion or his acs.28 Te second case involved an Iraqi man resid-

ing in Arizona who murdered his daugher because she was living wih a man who

was no her husband. While he media and he prosecuors characerized he case

as an honor killing,29

he deendan never raised such a deense.30

He was oundguily and duly senenced o nearly 35 years in prison.31

Undeerred by he acs and spurred on by he nework o ani-Muslim aciviss,

lawmakers across he counry have devoed signican public ime and resources

o addressing his nonexisen hrea. One o he rs insances was in Oklahoma

where on November 2, 2010, 70 percen o voers approved he Save Our Sae

reerendum amending he sae consiuion by requiring ha Oklahoma cours:

when exercising heir judicial auhoriy, shall uphold and adhere o he law

as provided in he Unied Saes Consiuion, he Oklahoma Consiuion, heUnied Saes Code, ederal regulaions promulgaed pursuan hereo, esab-

lished common law, he Oklahoma Saues and rules promulgaed pursuan

hereo, and i necessary he law o anoher sae o he Unied Saes provided

he law o he oher sae does no include Sharia Law, in making judicial deci-

sions. Te cours shall no look o he legal preceps o oher naions or culures.

Specically, he cours shall no consider inernaional law or Sharia Law.32

Te amendmen was challenged under he Esablishmen Clause o he Firs

Amendmen o he Consiuion, which orbids he governmen rom discrimina-

ing agains any religion.33 On November 29, 2010, a ederal disric cour enjoined

he amendmen, nding ha he plaini had made a srong showing o likelihood

o success on he meris o his claim ha he amendmen unconsiuionally dis-

criminaes agains Islam.34 Te ederal cour o appeals reafrmed his conclusion

in is decision o srike down Oklahomas ani-Sharia measure as unconsiuional.

In doing so, he cour noed ha he paries deending he ban did no know o

even a single insance where an Oklahoma cour had applied Sharia law or used

he legal preceps o oher naions or culures, le alone ha such applicaions or

uses had resuled in concree problems in Oklahoma.35


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Foreign law bans

Te Oklahoma consiuional amendmen is he mos rank and unadorned sae-

men o he inen o ani-Sharia measures. In a bid o avoid he consiuional

problems ha Oklahoma aced, sae consiuional amendmens and legislaive

bills moivaed by he same agenda have aken a dieren course. Insead o reer-ring explicily o Islam or Sharia, hese iniiaives now prohibi sae cours rom

enorcing oreign law where i conics wih ederal and sae consiuional righs.

Tis shi rom specic ani-Sharia measures o oreign law bans is also sraegic.

In a 2011 inerview wih TeNew York imes, David Yerushalmi revealed ha he

new measures were designed o appeal o a broader consiuency ha had long

opposed he inuence o oreign laws in he Unied Saes.36 While U.S. cours

have used oreign and inernaional law or cenuries, in recen years he use o

hese sources in consiuional inerpreaion has become he subjec o con-

roversy.37 In paricular, reerences o oreign and inernaional sources in courdecisions involving socially divisive issues such as he deah penaly, afrmaive

acion, and gay righs have raised concerns abou oreign inuence,38 including a

ailed atemp o make i a criminal oense or ederal judges o rely on oreign and

inernaional law in inerpreing he U.S. Consiuion.39

In realiy, cours use inernaional and oreign law wihou much anare in

ordinary cases, such as when a dispue involves a righ under a reay or when he

paries choose he law o anoher counry o govern a business dispue. When i

comes o inerpreing he Consiuion or U.S. law, however, cours have sead-

asly reused o rea hese sources as preceden, reerring o hem only o gain

insigh abou a common legal problem.40

Te laes slew o oreign law bans ignores his cenuries-long pracice o judicial

resrain, reviving unwarraned ears ha oreign and inernaional law is hreaen-

ing o inlrae he U.S. legal sysem.

Foreign law bans are considered innocuous by some because hey seem similar

o a rule already ollowed by U.S. cours. Bu heir unambiguous hosiliy o he

law o oher counries and heir ambiguous phrasing hreaen o disrup rouineuses o oreign and inernaional law in sae cours and arbiraions. Tis raises

a hos o quesions abou heir scope and applicabiliy ha will have o be adju-

dicaed by sae cours, poenially creaing maniold problems or American

businesses and amilies.


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International and oreign law in American courts | www.americanprogress.

International and foreign law

in American courts

While he erms inernaional law and oreign law are someimes used iner-

changeably, hey reer o very dieren bodies o law, which have dieren sanding

in our legal sysem. Under he Supremacy Clause o he U.S. Consiuion, iner-

naional law ha is acceped by he Unied Saes becomes par o American law.

Foreign law, in conras, is never considered o be par o U.S. law and may only be

used i i does no violae public policy. A shor descripion o he wo ypes o law

will help o clariy he issue.

Inernaional law radiionally consiss o rules and principles governing he rela-

ions and dealings o naions wih each oher.41 A main source o inernaional law

is reaies, which are agreemens ha he presiden negoiaes wih oreign govern-

mens. Under he Consiuion a reay becomes par o he supreme law o he

Land when i is approved by a wo-hirds majoriy o he Senae and raied by he

presiden.42 Some reaies are considered auomaically binding

on U.S. cours,43 while ohers mus be implemened ino law by

Congress.44 Oen, bu no always, he later ype o reay is incor-

poraed ino domesic law hrough ederal legislaion.45

reaies have long governed U.S. relaions wih he res o he

world in areas as diverse as commerce, shipping, and he pro-

ecion o diplomas. In ac, one o he rs U.S. reaies was

responsible or esablishingAmerican sovereigny: Te reay

o Paris, raied by Congress in 1784,46 ofcially ended he

American Revoluionary War and delineaed he boundaries o

U.S. erriories.

Te Supreme Cour has also recognized anoher caegory o iner-naional agreemens as having he same binding orce as reaies:

execuive agreemens.47 Tese are agreemens ha he execuive

branch eners ino wihou he advice and consen o he Senae. A

amous example is he agreemen ha ormer Presiden Franklin

A modern example o a treaty that is co

monly interpreted and enorced by theis the Hague Convention on the Civil As

o International Child Abduction. The C

tion seeks to secure the prompt return

children who have been kidnapped and

abroad. Congress enacted the Internati

Child Abduction Remedies Act, or ICAR

1988 to implement the nations obligat

under the Convention. Although the Co

tion is now the law o the land, it is als

agreement between 88 countries that r

their shared understanding o the right

duties they owe under international law

it comes to matters o child custody.


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D. Roosevel signed wih he Briish a he beginning o World War II, which

exchanged 50 U.S. warships or conrol over cerain Briish naval and air bases in he

Alanic. Te Congressional Research Service esimaes ha beween 1939 and 2012

he Unied Saes has concluded roughly 17,300 published execuive agreemens.48

Finally, i is well setled ha American law includes cusomary inernaionallawhe porion o inernaional law ha is developed hrough wha counries

do and say ha suggess here is a binding inernaional rule on a paricular

issue. While his may sound somewha vague, cusomary law is a relaively lim-

ied se o rules ha mus be sufcienly well dened and widely acceped o be

enorced in American cours.49 Many o he rules covered by cusomary inerna-

ional law, such as he recogniion ha piracy is an inernaional crime and he

proecion o diplomas, dae back cenuries.

Similar o any oher ederal law, inernaional law may be challenged or violaing

righs proeced under he U.S. Consiuion.50 Inernaional law, on he oher hand,is generally considered superior o sae law in he even o a conic. In oher words,

sae cours canno reuse o apply inernaional law simply because i violaes indi-

vidual righs graned by a sae consiuion.51

Foreign law, on he oher hand, is no par o U.S. law. Te erm is mos commonly

undersood o reer o he laws o a oreign counry.52 Foreign law is honored in

boh ederal and sae cours as long as i does no conic wih public policy. Tis

approach is driven by pracical consideraions: Te Unied Saes gives due regard

o he laws and judgmens o oher counries53 in order o mainain healhy iner-

naional relaions and peace beween naions.54 Our cours do no si in judg-

men o he laws and values o oher counries because we do no wan oreign

naions o pass judgmen on our own. 55

Ta does no mean, however, ha U.S. cours will enorce all oreign laws. Tey

will no enorce oreign laws ha conic wih public policy o which he U.S.

Consiuionand in he case o sae cours, he consiuion o he relevan

saeis surely a par. Te disincion here is in he deails. In considering wheher

o enorce a oreign law, cours will ensure ha i mees undamenal consiuional

requiremens. Bu U.S. cours have never expeced oreign laws o conorm o everydeail or pariculariy o American consiuional law.56 Liigans canno, or exam-

ple, challenge he validiy o a oreign judgmen simply because here was no jury

riala righ proeced under he Sevenh Amendmen bu absen in nearly every

oher counry57or i winesses were examined by a magisrae raher han cross-


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International and oreign law in American courts | www.americanprogress.o

examined by opposing counsela widely acceped pracice in coninenal Europe,

bu one considered incompaible wih American due process.58 On he oher hand,

cours have consisenly rejeced judgmens arising rom proceedings ha are unda-

menally unair or paenly incompeen or corrup.59

Under his rubric, oreign law is rouinely used in U.S. cours. American busi-nesses requenly ener ino invesmens and ransacions ha are organized

according o oreign laws or ha designae oreign law as he law ha governs any

dispue arising ou o a conrac. I a dispue arises under hese ypes o conracs,

an American cour may be called upon o consrue oreign law in order o decide

he case. Te use o oreign law is also common in amily maters. Cours are oen

called upon o recognize oreign marriages, divorce decrees, premarial agree-

mens, cusody arrangemens, and adopions. Boh corporae and amily arrange-

mens are generally respeced so long as hey do no violae U.S. public policy.

As noed by Proessor Aaron Fellmeh o Arizona Sae Universiy, he oreign lawbans currenly in vogue in sae capials ap ino an ongoing debae in Congress,

academia, and civil sociey, and beween he jusices [o he Supreme Cour]

hemselves abou he occasional ciaions o inernaional law and oreign laws

by he Supreme Cour.60 Tis debae has cenered on he use o inernaional

and oreign law in inerpreing he provisions o he U.S. Consiuion, no on

he rouine use o hese bodies o law where a cour is called on o adjudicae a

run-o-he-mill conrac dispue. Ciaion o he almos universal rejecion o he

deah penaly in Europe in inerpreing he conours o he Eighh Amendmens

prohibiion on cruel and unusual punishmen has raised objecions, or example.61

Bu even hose who criicize he use o oreign law in consiuional inerpreaion

acknowledge ha is use is absoluely appropriae in a wide variey o circum-

sances. Supreme Cour Jusice Anonin Scaliawho is known or his very public

criicism o ciaions o oreign law in inerpreing he U.S. Consiuion62

explained in a 2004 address o he American Sociey o Inernaional Law some o

he appropriae uses o oreign law:

To interpret a treaty to which the United States is a party :Jusice Scalia

explained ha he whole objec o a reay was o esablish a single, agreed-upon regime governing he acion o all he signaories. In hese circumsances

U.S. cours should give considerable respec o he inerpreaion o he same

reay by he cours o oher signaories.63


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Where a federal statute directly or indirectly refers to a foreign law:64 Te poin

made by Jusice Scalia is amplied by an example ha Heriage Foundaion

ellow Andrew Grossman highlighed during a recen congressional hearing:65

a prosecuion or a violaion o he Lacey Ac, which criminalizes he impora-

ion, possession or ranser o any wildlie in violaion o any oreign law,66

would naurally require a cour o ascerain wheher anoher counrys law acu-ally prohibied he ac in quesion.67

Empirical evidence of how a particular rule functions in practice: Foreign

experience in implemening a rule may provide American cours wih useul

inormaion abou he possible consequences o a paricular inerpreaion. Te

Supreme Cour, or example, esablished he amous Miranda warning aer

nding ha similar warnings in oher counries had no marked derimenal

eec on criminal law enorcemen.68

In addiion, or more han a cenury, U.S. cours have applied oreign law ora wide variey o purposes oher han consiuional inerpreaion in areas as

diverse as amily law, conrac law, and employmen law. A ew examples sufce o

demonsrae such rouine and unconroversial uses o oreign law:

Sae cours are regularly called upon o deermine he validiy o a marriage

enered ino abroad and will ypically do so in accordance wih he law o he

counry where he marriage ook place.69

In ransnaional business ransacions a conrac may speciy he laws o oher

naions as governing.70

Cours may rely on oreign law in setling dispues relaing o employmen wih a

oreign company ha are governed by he laws o ha companys home counry.71

Te number o cases ha require U.S. cours o consider oreign law has risen in

recen years due o he expansion o global rade and commerce. Tis developmen

is no limied o he ederal cours. Sae cour judges have also ound ha heir

dockes are increasingly lled wih cases ha involve cross-border ransacions.72

In hese ypes o cases, U.S. cours have always subjeced oreign law o an

addiional es ha does no apply o inernaional law: wheher he oreign law

violaes public policy. Cours apply his es rigorously so as no o jeopardize

comiy beween he Unied Saes and oher naions. A cour will usually apply a

State court judges

have also ound

that their dockets

are increasingly

lled with cases

that involve cross-

border transactions.


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International and oreign law in American courts | www.americanprogress.o

oreign law even i i is inconsisen wih local law,73 unless i, or example, sanc-

ions criminal conduc74 or he erminaion o a conrac wihou jus cause.75 Bu

cours also consisenly reuse o recognize oreign laws or judgmens ha violae

our basic noions o jusice, airness, and moraliy.

In sum, inernaional legal norms ha he Unied Saes has acknowledged arebinding on i are par o he law o he land and are oen codied in ederal leg-

islaion. Wih regard o oreign law, cours have developed a careully calibraed

sysem ha ensures respec or such law and a he same ime prevens enorce-

men o laws conrary o our naions public policy. While he use o inernaional

and oreign law in consiuional inerpreaion has been he subjec o debae,

his exible approach has allowed cours o use inernaional and oreign law in

everyday dispues where appropriae.


22/68


23/68

New wave o oreign law bans: Legal uncertainties | www.americanprogress.o

New wave of foreign law bans:

Legal uncertainties

Te oreign law bans ha have been adoped or are under consideraion generally

atemp o mimic he rule ha is currenly ollowed by American cours, which

has led some commenaors, and presumably lawmakers as well, o conclude ha

hese bans are innocuous. While he bans vary somewha in heir precise ormula-

ions, hey generally do wo hings: prohibi cours, governmen agencies, and

arbiral ribunals rom applying or enorcing oreign law i doing so would violae

sae or ederal consiuional righs;76 and speciy ha conracual provisions

sipulaing ha oreign law is governing will no be respeced i doing so wouldresul in he violaion o righs guaraneed by he sae or U.S. consiuions.77 Te

later rule also applies when paries o a conrac choose a oreign venue or resolv-

ing dispues, and such a choice would resul in he violaion o righs guaraneed

by he sae or U.S. consiuions.78

A closer examinaion o he bans, however, shows ha several o hem are broader

in scope han he curren rule and are hereore boh consiuionally suspec and

likely o creae uncerainy and liigaion abou he applicaion o oreign law.

Wholesale evaluation of fairness of foreign systems, not relevant

foreign law

Several oreign law bans require sae cours and ribunals o evaluae he general

airness o oreign legal sysems, exending ar beyond he curren rules under which

a cour will consider wheher he paricular law a issue violaes U.S. public policy.

Te model legislaion draed by ani-Sharia aciviss would prohibi cours rom

looking a oreign law in wo siuaions: when applying oreign law would clashwih consiuional righs; and when he naional sysem rom which a oreign law

emanaes does no proec righs in he same way as he U.S. Consiuion. Te

core provision o he model legislaion saes:


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Any cour, arbiraion, ribunal, or adminisraive agency ruling or decision shall

violae he public policy o his Sae and be void and unenorceable i he cour,

arbiraion, ribunal, or adminisraive agency bases is rulings or decisions in he

mater a issue in whole or in par on any law, legal code or sysem ha would no

gran he paries aeced by he ruling or decision he same undamenal liberies,

righs, and privileges graned under he U.S. and [Sae] Consiuions.79

In oher words, a cour decision is invalid i i is based in whole or in par on a legal

sysem ha would no gran he paries he same undamenal righs as he U.S.

Consiuion and he relevan sae consiuion.

Tis is a ar cry rom examining wheher applying a paricular oreign law would

violae a paricular consiuional provision. Insead, he model provision being

pushed by proponens o hese bans would require sae cour judges o conduc

a wholesale evaluaion o oreign sysems ha are unamiliarbased on preceps

dieren rom he Anglo-American common law sysemand where relevanmaerials may oen be in a dieren language.

Te oreign law ban adoped by Kansas mimics he model language, replicaing

he uncerainies described above:

Any cour, arbiraion, ribunal or adminisraive agency ruling or decision shall

violae he public policy o his sae and be void and unenorceable i he cour,

arbiraion, ribunal or adminisraive agency bases is rulings or decisions in he

mater a issue in whole or in par on any oreign law, legal code or sysem ha

would no gran he paries aeced by he ruling or decision he same undamenal

liberies, righs and privileges graned under he Unied Saes and Kansas consi-

uions, including, bu no limied o, equal proecion, due process, fee exercise o

religion, feedom o speech or press, and any righ o privacy or marriage.

I a Kansas cour were o nd ha i could only honor he laws o counries ha

respec he same consiuional righs as he Unied Saes, his could drasically

curail rade wih oreign naions such as China, Americas second-larges rading

parner.80 Te impac on he use o religious law o all sripes would be equally

sweeping. As journalis Mathew Schmiz poined ou inNaional Review:

Sharia, o course, does no gran all he righs ha he U.S. Consiuion does; nei-

her does Chrisian canon law or Jewish Halakhic law (or English or French law,

or ha mater). Bu why should his ac preven a cour fom honoring a conrac

The model

provision being

pushed by

proponents o

these bans would

require state court

judges to conduct

a wholesale

evaluation o

oreign systems that

are unamiliar

based on precepts

diferent rom the

Anglo-American

common law

systemand where

relevant materials

may oten be in a

diferent language.


25/68


made under he provisions o one o hese oreign legal sysems i he conrac does

no isel violae any U.S. or sae regulaions, laws, or consiuional provisions?

Under one reading o he Kansas law, a conrac ha makes reerence o canon

law or sharia bu is oherwise perecly legal would be hrown ou, while an

idenical one ha makes no such reerence would be upheld.81

One migh posi ha here is sufcien ambiguiy in he Kansas ban ha a cour

applying i would ocus on wheher consiuional righs would be violaed in he

paricular case beore i. Bu a recen decision concerning he enorceabiliy o

a Muslim marriage conrac shows ha his ambiguiy may be cold comor. In

Soleimani v. Soleimani a Kansas disric cour indicaed ha under he saes or-

eign law ban, i may no recognize any premarial agreemen ha originaes rom a

legal sysem which is obnoxious o equal righs based on gender.82 Alhough he

case was ulimaely decided on oher grounds, he cours reasoning suggesed ha

he oreign law ban superseded he radiional case-by-case consideraion o he

validiy o a premarial agreemen and insead required he cour o evaluae heairness o he legal sysem rom which he premarial conrac emanaed.

I is also unclear wha i means or a cour o base is decisions on an oending

oreign law. ake, or example, a cour rying o decide when a righ o preven a

child rom leaving he counry is considered a righ o cusody. 83 I he cour cies

oreign decisions o show ha is inerpreaion o he righ o cusody is widely

shared by oher counries, would ha be a violaion o he ban? Or does he ban

merely preven he cour rom reaing hese decisions as binding? Wha i he

cour reers o oreign experiences o show ha oo broad an inerpreaion o he

righ o cusody would have negaive consequences?84

Te oreign law bans enaced in Louisiana85 and ennessee86 and inroduced in

Souh Carolina87 and Indiana88 are narrower in scope. Firs, hey sae ha cours

canno enorce he oending oreign law, legal code or sysem,89 suggesing ha

simply reerencing such laws may be permissible. Second, hey seem o say ha a

cour canno enorce oreign law i doing so would violae a ederal or sae consiu-

ional righ in heparicularcase under consideraion.90 Noneheless, he reerence

o oreign sysemas opposed o oreign lawcreaes he possibiliy ha cours

may reuse o apply he law o oreign counries ha do no embrace disinclyAmerican noions o undamenal reedoms. Tis inroduces an elemen o uncer-

ainy ha is derimenal o he sabiliy and predicabiliy o he U.S. legal sysem.


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Muliple variaions o he oreign law ban have been inroduced across he coun-

ry,91 creaing he possibiliy o chaos in he setlemen o ransnaional dispues.

Noably, he mos recen wave o ani-oreign law measures ha have been inro-

duced in Oklahoma, Missouri, and Iowa ollow he broader Kansas-Yerushalmi

model raher han he more resrained versions o he ban.92 Tis increases he risk

ha cours in several saes may be required o conduc a wholesale evaluaion ohe airness o oreign sysems o law raher han jus looking a he case or conro-

versy wih which hey are aced.

TABLE 1

Types o oreign law bans

StateStates with

similar billsWhat does the law do? What is the scope o the law?

Kansas;

Oklahoma

Missouri,* Iowa,*

Pennsylvania,

Georgia, Nebraska,Arkansas, Minne-

sota, Mississippi

BANS reliance on oreign law

unless the oreign system

grants parties the equivalento ederal or state constitu-

tional rights

Widest: bans mere reliance

onas opposed to enorcement

ooreign law; can only rely on

a oreign law i the system romwhich it originates grants the

same protections as ederal and

state constitutions

ArizonaAlabama,* New

Hampshire

BANS enorcement o

oreign law unless consistent

with ederal or state law

Very wide: application o oreign

law rejected not only on consti-

tutional grounds but as long as it

conicts with American law

Louisiana

Indiana,* South

Carolina,* Florida,*

Michigan, North

Carolina, Alaska,

Kentucky, Missis-

sippi, New Jersey,

Utah, Virginia

BANS enorcement o

oreign law unless consistent

with ederal or state consti-

tutional rights

Wide: most common ormulation

o the ban

TennesseeWest Virginia,

Maine

MUST CONSIDER as a

primary actor whether

oreign law violates consti-

tutional rights

Unclear: primary actor approach

seems to leave courts with some

room, but it is unclear how such

discretion will be exercised

* Introduced or reintroduced in 2013.


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Not all states that have introduced anti-oreign law bills are eatured

in table. Why?

A small number o the bills introduced across the country are dier-

ent rom the our models illustrated in our table. Bills introduced in

Florida, or example, conusingly adopt the language used in boththe Kansas and Louisiana bans, creating considerable uncertainty

about how they will be interpreted and applied. Another notable out-

lier is Texas, where one o the two bills introduced prohibits the use o

oreign law that does not guarantee state or ederal constitutional

rights in cases concerning a marriage relationship or a parent-child

relationship. It also bears mention that South Dakota has enacted

a related law banning the enorcement o religious codes. The Ap-

pendix provides a detailed breakdown o the eatures and status o

the bills introduced so ar.

Why do the diferences in the wording o the bans matter?

These dierences aect how courts will interpret and apply the

bans, which in turn impacts how cases involving oreign partie

arrangements are resolved. Take, or example, a Jewish couple

seeks recognition o their marriage, which was ociated by a rin Israel. I they live in Louisiana, the states oreign law ban ma

aect the validity o their marriage contract since the contract

question does not violate the constitutional rights o either spo

They may, however, run into problems i they move to Kansas.

there may fnd that the religious system on which their contrac

based does not aord women the same protections granted by

U.S. and Kansas constitutions.

Disrupting the enforcement of international law

As previously explained, inernaional law is par o he supreme law o he land

and mus be enorced by boh ederal and sae cours, while cours only apply

oreign law i i is consisen wih public policy. Tree o he our bans ha have

been passed hus ar, however, seem o include inernaional law wihin he rubric

o oreign law and may be read o require cours o conduc an exhausive con-

siuional review o every inernaional rule ha hey are called upon o enorce.

Kansas, Louisiana, and ennessee dene oreign lawwhich heir cours are

prohibied rom applyingas any law, legal code or sysem o a jurisdicion

ouside he Unied Saes.93 As Fellmeh has observed,94 i is unclear wheher

inernaional law, as opposed o oreign law, would be covered by his deniion.

I is equally unclear wheher U.S. laws ha rely on inernaional lawsuch as he

hundreds o laws implemening reaieswould be included in he deniion.95

Some o he bans go even urher by prohibiing cours rom applying he laws,codes, and sysems o inernaional organizaions and ribunals.96 Te Unied

Saes has signed on o reaies ha esablish such organizaions and ribunals and

has commited o abiding by heir rules. Te World rade Organizaion, or exam-

ple, was se up under he Marrakesh Agreemen, which Congress approved and


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implemened in 1994.97 As a member o he World rade Organizaion, or WO,

he Unied Saes is bound by is judgmens when i comes o rade dispues wih

oher naions. While privae rade dispues are no liigaed beore he WO, he

principles ariculaed in hese cases are commonly cied by U.S. cours in resolving

cases. Bu under he oreign law bans, i appears ha hese principles may no be

relied on wihou a consiuional analysis because hey consiue oreign law.98

Perhaps o avoid such an oucome, Arizona and Oklahoma explicily exclude

U.S. reaies rom heir deniion o oreign law.99 While he reay exempion is a

useul innovaion, hese measures would neverheless prohibi he consideraion

o oher sources o inernaional law, which are also par o he naions supreme

law and binding in all saes. As noed by he Congressional Research Service, he

grea majoriy o inernaional agreemens ha he Unied Saes eners ino are

no reaies bu execuive agreemens, which are no expressly exemp rom any

ban.100 Te bans may also inerere wih he abiliy o cours o inerpre cusom-

ary inernaional law and general principles o inernaional law, which are basedon he pracices o oher counries. In he pas, U.S. cours have relied on hese

ypes o inernaional law o resolve a wide range o issues such as he naure o

liabiliy or piracy oenses,101 he scope o he righ o exradiion,102 and he rules

o corporae-civil liabiliy ha govern inernaional dispues.103

Tere will also be considerable uncerainy abou wheher sae cours acing under

he bans will be able o enorce inernaional law norms ha draw upon oreign law.

As Jusice Scalia explained,104 when cours are called upon o inerpre an ambiguous

reay provision, hey give considerable weigh o he judgmens and pracices o

oher signaories or an inerpreaion ha gives eec o he original shared under-

sanding o [all] conracing paries.105 o underscore his poin, consider he ac

ha oreign law is a rouine par o child cusody dispues regulaed by he Hague

Convenion on he Civil Aspecs o Inernaional Child Abducion,106 and ha

personal injury claims agains aircra carriers all under he Monreal Convenion.107

Reusing o consider he views o oher signaoriesand poenially ignoring iner-

naional consensus on how a reay should be inerpreedmay provoke a backlash

rom oreign governmens, creaing difculies or Americans seeking o enorce

righs proeced by reay law in oher counries.108

Ani-oreign law bills inroduced in 2013 would raise similar uncerainies regard-

ing heir applicabiliy o inernaional law, wih he Wyoming version explicily

orbidding cours rom considering inernaional law when deciding cases.109

When sae cours are called upon o inerpre oreign law bans, hey will have o


29/68


consider a myriad o hese ypes o quesions as hey sruggle o abide by he con-

siuional command ha reaies mus be reaed as par o he supreme Law o

he Land. As he American Bar Associaion, or ABA, has poined ou, uncerainy

creaed by he relaionship o oreign law bans o he applicaion o inernaional

law in sae cours is likely o have an unanicipaed and widespread negaive

impac on business.110

I could also jeopardize a wide range o personal arrange-mens regulaed by inernaional law.

Preventing enforcement of judgments from other states

A poenial corollary eec o ani-oreign law measures is ha hey may conic

wih he duy o sae cours o give ull aih and credi o he judgmens o siser

saes in cases where he judgmens have considered oreign laws, inernaional

norms, or religious-legal radiions.

Te ABA noed ha, a saes reusal o respec he judicial decisions o anoher

sae is a serious mater ha may in many cases give rise o a consiuional

violaion.111 Under he Full Faih and Credi Clause o he Consiuion, a sae

is obliged o recognize he judgmens o a siser sae so long as he later has

jurisdicion over he paries and he subjec mater. Te Supreme Cour has made

clear ha here is no roving public policy excepion o he ull aih and credi

due judgmens.112 Tis exacing obligaion ensures ha saes are inegral pars o

a single naion, and no simply an aggregaion o independen, sovereign [eni-

ies].113 Te Kansas ban is he mos emphaic in his regard. I appears o bar any

judgmen based on incompaible oreign law, even i i was rendered by he cour

o a siser sae.114 Te language o oher oreign law bans is more qualied bu

may also be plausibly read o bar siser sae judgmens.115 Such a reading would

undermine a core principle o ederalism and cas enormous doub on he righs

and obligaions o paries across sae lines: Money judgmens arising rom iner-

naional business dispues would be enorceable in some saes bu no ohers, as

would marriages solemnized according o religious principles or wills probaed

according o he laws o he esaors home counry.

Violation of separation of powers

Resricions on he power o sae cours o consider oreign and inernaional

law may also inerere wih heir core judicial uncion, violaing he separaion o


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powers. Te U.S. governmen is divided ino hree independen branches o power,

each wih is own duies and responsibiliies: a legislaure ha makes law, a judiciary

ha decides wha he law means, and an execuive ha applies he law. Tis power-

sharing arrangemen checks governmen abuse by prevening he concenraion o

oo much power in any one person, group, or agency. Lawmakers, or example, can-

no apply he law hey make, while cours canno make he law hey inerpre.

Tese power-sharing principles are also very much par o sae law. Te consiu-

ions o Arizona,116 Louisiana,117 and ennessee,118 or example, expressly prohibi

any branch o governmen rom exercising he powers ha properly belong o

anoher. Te Kansas Supreme Cour has recognized ha he very srucure o he

saes sysem o governmen gives rise o he [separaion o powers] docrine.119

As ar back asMarbury v. Madison, i has been acceped ha while he legislaure

has he power o wrie and enac laws, i is emphaically he province and duy

o he judicial deparmen o say wha he law is.120 Deermining wha sources olaw o look a and how hey should be applied are par o guring ou wha he

law is and hus also quinessenial judicial acs.121 Te Louisiana Supreme Cour,

or example, has exclusive auhoriy o decide how much weigh i should give

o resaemens o French law when inerpreing he saes Civil Code, a saue

rooed in he French civil law sysem.122 Te Louisiana legislaure may aler he

provisions o he Civil Code o esablish a new legal sandard ha governs subse-

quen cases, bu i canno dicae he ypes o law or maerials ha he Louisiana

Supreme Cour may or may no consider in is uure decisions.

By orbidding judges rom looking a oreign and inernaional law, sae legisla-

ures have eecively arrogaed o hemselves his power by enacing sweeping

rules on how judges may or may no use oreign and inernaional law in deciding

cases. Previous atemps o pass similar laws have unsurprisingly drawn he ire o

judges across he ideological specrum, including none oher han Jusice Scalia

himsel. When bills seeking o resric judicial reliance on oreign law were inro-

duced in Congress, Jusice Scalia issued a sern rebuke o heir proponens:

Is none o your business. No one is more opposed o he use o oreign law

han I am, bu Im darned i I hink is up o Congress o direc he cour how omake is decisions.123

When bills seeking

to restrict judicial

reliance on

oreign law were

introduced in

Congress, Justice

Scalia issued a stern

rebuke to their

proponents:

Its none o your

business. No one

is more opposed to

the use o oreign

law than I am, but

Im darned i I think

its up to Congress

to direct the court

how to make its

decisions.


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Impeding freedom to contract

Te Conrac Clause o he U.S. Consiuion saes ha, No Sae shall pass

any Law impairing he obligaion o Conrac. 124 Tis rule is violaed when a

change in sae law subsanially impairs any agreemen ha was enered ino

beore he change.125

Foreign law bansespecially he version adoped in Kansasand Oklahoma and he bans being considered in Missouri and Iowaare likely o

have precisely his ype o eec.

In personal and amily maters, oreign law bans could call ino quesion he

validiy o exising wills, adopion papers, and child cusody agreemens ha are

arranged according o religious or oreign law principles. Chrisians, Jews, and

Muslims who have agreed o arbirae personal and amily dispues beore aih-

based ribunals may also nd heir agreemens and awards in jeopardy.

American businesses ha paricipae in inernaional business ransacions arealso no spared. ake, or example, a Kansas enrepreneur who buys elecronic

goods rom a Mexican businessman wih several sores and business accouns

in he Unied Saes. Tey boh agree ha Mexican law will govern, bu ha any

dispue arising rom he sale will be resolved in Kansas. When he enrepreneur

receives he goods, he nds ha hey are deecive and sues in a Kansas cour o

recover his money. Te saes oreign law ban may complicae wha would have

oherwise been a sraighorward claim or damages and may require he Kansas

cour o scruinize wheher Mexicos legal sysem is consisen wih U.S. and sae

consiuional law. As a resul, he enrepreneur may experience difculies, delays,

and higher coss rying o enorce he conrac simply because he has chosen

oreign law o govern his business arrangemens.

Te narrower ormulaion o he ban, which prohibis cours rom enorcing

oreign laws ha violae sae or ederal consiuional righs,126 may no com-

mission a wholesale evaluaion o oreign-legal sysems bu may be disrupive in

oher ways. Tese bans, or example, could poenially upse he well-esablished

pracice o recognizing judgmens rom oreign cours ha do no provide or jury

rials. Tese judgmens could be regarded as violaing he Sevenh Amendmen

o he U.S. Consiuion and mos sae consiuions,127

which proec he righo a jury rial in cases involving money damages. U.S. cours, however, have long

enorced oreign judgmens ha were reached wihou jury deliberaion, provided

he proceedings are undamenally air.128 Foreign law bans, even in heir narrow-


32/68


es orm, jeopardize his exible rule, orcing cours o rejec oreign judgmens

ha are inconsisen wih he specics o American due process.

Any o he scenarios idenied above hwars he paries expecaions under valid

conracs. Te subsanial impairmen o hese conracs can only be jusied by

a signican and legiimae public purpose, such as he remedying o a broadsocial and economic problem.129 Alhough some o he bans have been jusied

on he ground ha Americans need proecion rom oreign law, his claim seems

unlikely o wihsand judicial scruiny. Tere is no evidence ha Americans need

his ype o proecion because, as previously discussed, he cours already have a

exible ool o reuse enorcemen o oreign law on public policy grounds. Any

serious examinaion o he issue shows ha he oreign law bans address a nonex-

isen problem raher han a legiimae public purpose.130

Te legal and consiuional quesions described above demonsrae ha oreign

law bans sray rom well-esablished rules governing how oreign and inernaionallaw should be applied in ransnaional dispues. Tey no only undermine he

powers o he ederal governmen and sae cours bu hey also inerere wih he

reedom o Americans o arrange heir personal and commercial aairs as hey see

. Tese legal inrmiies mean ha hese bans will almos ineviably be chal-

lenged in cour, wih axpayers bearing he cos deending hem.


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New wave o oreign law bans: Practical problems | www.americanprogress.o

New wave of foreign law bans:

Practical problems

Te legal and consiuional inrmiies o he bans also ranslae ino a slew o praci-

cal problems or American amilies and businesses, which are deailed below.

Problems for American families

Perhaps he greaes risk o oreign law bans is ha hey will upend he lives

o Americans who have enered ino amily arrangemens overseas. Tey willparicularly hur he housands o Americans who live and work in oreign

counries, including execuives sen abroad by U.S. companies and U.S. roops

saioned overseas.

Marriage, divorce, and prenuptial agreements

Marriages ha are legally perormed and valid abroad are generally presumed o

be binding in he Unied Saes.131 So are oreign divorce decrees provided ha

cerain jurisdicional condiions are saised.132 Te legaliy o hese arrangemens

is ypically liigaed in sae cours.133

Foreign law bans hrow his esablished pracice ino disarray. Under he broades

version o he oreign law ban passed in Kansas and Oklahoma and under consid-

eraion in Missouri and Iowa, oreign marriages could be challenged on he basis

ha he governing law or code in he counry where he marriage was perormed

conics wih he undamenal righs and liberies proeced under he U.S. and

sae consiuions. Te difculies ha women may experience in obaining

divorce under Jewish law,134

or example, could lead cours o consrue Jewishmarriages as produc[s] o a legal sysem which is obnoxious o equal righs

based on gender.135 Te same could be said or oher oreign marriages beween

Proesans, Caholics, Hindus, and Muslims ha are ofciaed under religious

law bu recognized as legally valid in large swahes o Europe, Lain America, and


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Souh Asia.136 Such an oucome, he Naional Council or Jewish Women has

observed, would send a very unwelcoming message o he Jewish populaion

and oher minoriies.137

A cours reusal o recognize a oreign marriage could lead Americans and heir

oreign spouses o lose a wide range o benes. Tese include lower ax raes,138

immigraion benes or he oreign parner,139 and he abiliy o make lie-and-

deah decisions on behal o a spouse during medical emergencies.140 Indeed,

people rying o avoid paying a oreign spouse his or her air share o marial asses

could well rely on broad oreign law bans o invalidae marriages ha hey had

enered ino reely.141

Te bans also have a ar-reaching impac on oreign divorcees and heir amilies.

In Florida, which has a large Jewish populaion, he legislaures consideraion o

a oreign law ban brough hese issues ino sark relie. Te ban was opposed by

Jewish groups or heir poenial o upend a variey o amily arrangemens. In par-icular, he Ani-Deamaion League poined ou ha nonrecogniion o oreign

divorce decrees under he bans would undermine relaed decisions concerning

alimony and child cusody, and serve as a barrier o remarriage in Florida or

any Jewish person who divorced in Israel.142

Foreign law bans such as he one in Kansas may also disrup he enorcemen o

oreign and religiously based prenupial conracs, which are airly common among

he Jewish communiy. Under radiional Jewish law, only he husband can end

a marriage.143 o avoid hardship o women, Jewish couples someimes ener ino

prenupial agreemens ha provide or he husbands paymen o a cerain amoun

o suppor (or liquidaed) damage per day or each day ha he reuses o end he

marriage aer he wie requess him o do so.144 Tis inricae ramework o radi-

ions and proecions could be upended by a caegorical prohibiion o any or-

eign or religious sysem ha is perceived as inconsisen wih American noions o

undamenal liberies. A cour in Kansas or Oklahoma, or example, may overurn a

Jewish prenupial agreemen because is religious conexhe radiional rules and

cusoms o Jewish divorceis perceived as discriminaory oward women.145 Tis

would be he case regardless o wheher he paries were acually rying o enorce

specic discriminaory rules. Such a pracice would ironically harm Jewish womenby undermining he very ools hey use o proec hemselves.


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What is a prenuptial agreement?

A prenuptial agreement is a written contract between two people

who are about to marry. In many cases it sets out how their assets

and property will be divided i the marriage is dissolved.

Is a prenuptial agreement motivated by religious principles enorce-

able in a court o law?

Such agreements may be enorced provided that they comply with

the requirements o the states amily laws. A valid prenuptial agree-

ment generally must be executed voluntarily and with adequate

disclosure o its terms and conditions. It also cannot be made under

any unconscionable circumstances.

Why do oreign law bans disrupt the recognition o such agreem

Under a ban as broad as that enacted in Kansas, a court may re

enorce a premarital agreement i it was signed in a country th

not grant the same undamental liberties as the United States.

Soleimania Kansas state court reused to enorce a Muslim macontract, commonly known as a mahr agreement, that obliged

husband to pay his wie a lump sum upon divorce.Soleimanitu

primarily on the courts dissatisaction with the evidence prese

support o the mahr agreement. But the court also extensively

lyzed the agreement under the states oreign law ban, indicati

the mahr could also be void because it originates rom a legal s

that does not respect womens rights. The agreement invalidat

the court would ironically have provided the wie with more m

than Kansas divorce law.

Even oreign law bans ha do no require a cour o evaluae oreign sysems o law

could have subsanially deleerious eecs. Arizonas oreign law ban, or example,

prohibis cours rom enorcing oreign laws ha conic wih ederal or sae law.

Marriage and divorce laws vary widely rom counry o counry. I is hereore

highly likely ha Arizonas law diers rom ha o many oreign counries and his

provision could be used o invalidae a marriage or divorce solemnized in a oreign

counry. ake, or example, an American soldier who hinks he has divorced

his wie in Japan using he sandard regisraion procedure or muually agreed

divorces.146 When he soldier reurns o his home sae o Arizona and atemps

o marry someone else, he may nd ha he cours reuse o recognize his divorce

and preven him rom remarrying. Japans purely adminisraive regime o divorces

by muual consen sands in sark conras o he more elaborae rules or no-aul

Arizona divorces.147 Te cours reusal o recognize he Japanese divorce could

disrup any arrangemens o child cusody and suppor ha he soldier may have

enered ino as par o he no-aul divorce in Japan. Agreemens on division o

marial propery could also be in jeopardy.148


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Religious arbitration

A litle-known bu requenly used means o setling amily dispues is recourse

o aih-based arbiraion ribunals, which may also be disruped by oreign law

bans.149 Religious arbiraions share many qualiies wih commercial arbira-

ions. Tey require a valid agreemen o arbirae.150

Te paries choose heir ownreligious law as governing, as well as he religious auhoriy who will serve as he

arbiraor. Te decision o he arbiraor, i valid on public policy grounds, is bind-

ing under U.S. law.

I cours are required o invesigae he overall soundness o he religious law

applied in a dispueas suggesed by bans such as he one adoped by Kansas

his enire sysem will be disruped. o be sure, cours should no enorce agree-

mens or awards ha are, or example, discriminaory,151 oally irraional,152 or

unconscionable.153 Bu hey don need o analyze he enire religious sysem o

decide on airness in a paricular case. Asking hem o do so would jeopardizehe cerainy o religious arbiraions, which would conradic ederal policy,154

and cas doub on a popular opion or setling amily dispues. Asking cours o

evaluae he overall airness o a religious sysem would o course also pu hem in

a posiion o having o parse quesions o religious docrine, violaing he consi-

uional command ha hey mus remain neural oward all religions and avoid

excessive enanglemen in religion.155

Disadvantages to American business

Te poenial problems ha oreign law bans creae or American businessno ma-

er how limied in scopeare reeced in he concered eors by he business com-

muniy o oppose hem in sae legislaures.156 Tese eors are no doub responsible

or he corporae exempions included in several o he bans. Te ve saes ha

have passed oreign law bans so ar have added excepions or companies o allevi-

ae he resricions ha he laws would place on inernaional business ransacions.

Oklahoma, Kansas, Arizona, ennessee, and Louisiana exemp juridical persons

such as corporaions, parnerships, and oher business associaions rom he provi-

sions o he law.157

Five o he eigh saes ha inroduced ani-oreign law bills in2013 are also seeking o exemp corporaions rom hese measures.158


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Tese exempions do no ully resolve he poenial problems ha oreign law bans

pose or corporaions. o begin wih, exemping corporaions rom he scope o

he laws does no accoun or he hree-quarers o American businesses ha are

unincorporaed and employ hal o he naions privae workorce.159 Te pervasive

use o he Inerne, in paricular, has grealy increased he abiliy o even small,

unincorporaed businesses o operae across borders and engage in ransnaionalransacions ha implicae oreign law.160 I is also unclear how such exempions

would work in cases involving a corporaion and an individual, such as a dispue

concerning an employmen conrac.

Uncerainies abou he applicabiliy o he corporae exempion increase he

coss and risks o conducing inernaional business operaions, making saes

wih oreign law bans an unatracive venue or oreign commerce.161 Equally

imporan, oreign law bans creae he percepion ha he saes ha pass hem

are hosile o inernaional rade. Is one hing or sae cours o, as a mater

o course, evaluae conracual provisions or consisency wih American pub-lic policy. I is quie anoher o pass a law suggesing ha a saes ciizens need

proecion rom oreign laws, posiioning he sae as unrecepive o inernaional

commerce. Tese laws could discourage overseas rms rom enering ino rela-

ionships wih local companies or esablishing lucraive projecs ha require boh

local and overseas personnel.162

For he roughly 75 percen o U.S. businesses ha are unincorporaed, oreign law

bans creae a variey o pracical uncerainies. Te ollowing wo examples serve

o illusrae hese problems.

Choice of law clauses

Bans on oreign law could hwar he choice o law in liigaion and arbiral

proceedings o conracing paries. According o he American Law Insiue,

Conracs are enered ino or serious purposes and rarely, i ever, will he paries

choose a law wihou good reason or doing so.163 In inernaional commercial

ransacions American businesses may nd hemselves resriced in heir abiliy o

rely on heir chosen law, rusraing a core aspec o heir bargain. As he AmericanBar Associaion has poined ou, oreign paries may also be encouraged o eiher

avoid he Unied Saes as a venue or dispue resoluion or o impose a high price

in connecion wih some oher erm o he business deal in exchange or agreeing

o resolve uure dispues in he U.S.164


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Sae cours generally deer o he paries choice o law as long as here is a reason-

able basis or ha choiceor example, i he chosen counry is subsanially

relaed o he paries or he ransacionand as long as applying he chosen law

would no be conrary o a undamenal policy o he sae.165 Alhough here

is no precise deniion oundamenal policy, here are generally wo limiing

principles. Firs, a cour may no reuse o apply he chosen law merely because iwould lead o a dieren resul han would be obained under local law. Second, i

should show greaer deerence o he paries choice when he sae o he chosen

law is more closely relaed o he conrac and he paries han he orum sae.166

In sum, alhough public policy concerns vary widely, objecions based on public

policy can only be raised under very limied circumsances in order o ensure he

predicabiliy and securiy o inernaional commercial ransacions.167

Foreign law bans, however, are likely o increase he grounds on which choice o

law clauses may be invalidaed, hreaening o disrup he ne balance beween

he ineress o he conracing paries and hose o he sae. ake, or example, aconrac dispue beween a Saudi Arabian pary and one in Kansas168 in which he

case comes beore a cour in Kansas and he claiman seeks o disavow he choice

o Saudi law because i does no allow claims or uure damages. Te claiman

could argue ha he Saudi legal sysem is based on Sharia law and is inimical o

American consiuional values.

According o esablished case law, his generalized argumen[] ha Saudi law

incorporaes Islamic religious docrine would no provide a valid basis or rejec-

ing he applicaion o Saudi law.169 Bu a oreign law ban, paricularly a broad ban

such as he one adoped by Kansas, could well lead cours o reuse o enorce

he choice o Saudi law because he oreign sysem as a whole may violae sae or

ederal consiuional righs, regardless o wheher he oreign laws relevan o he

dispue would raise consiuional issues.170

Te same resul could ollow under he Arizona version o he oreign law ban,

which disallows he use o oreign law ha conics wih ederal or sae law.

Because boh ederal and Arizona171 law allow claims or uure damages, a claim-

an ha had previously agreed o waive his claim by agreeing o Saudi law could

seek o undo he iniial conracual bargain hrough he oreign law ban.

Te bans may also prove disrupive in arbiraions where paries have chosen

oreign law o govern he dispue bu seleced sae law o regulae procedural ma-

ers.172 In hese cases oreign law would govern subsanive issues such as wheher


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here was a breach o conrac and he ype o damages ha should be awarded,

and sae law would cover procedural maters such as how arbiraors are seleced

and wheher he paries choice o oreign law should be respeced in he rs

place.173 An arbiral ribunal applying sae procedural law in he conex o a or-

eign law ban may be compelled o override he paries choice o law or he same

reasons ha arise in a liigaion conex.174

Such complicaions would be liigaed a grea cos o he paries and signicanly

delay proceedings, undermining he very purpose o arbiraion, which is o

achieve a more efcien means o resolving commercial dispues. Te possibil-

iy ha oreign law bans will rusrae he paries choice o law is also likely o

deer he resoluion o inernaional commercial dispues in he Unied Saes.

American businesses may be orced o agree o adjudicae dispues in oher

naions raher han a home. Worse sill, he uncerainies hese bans creae may

complicae cross-border business dealings so much ha hey deer inernaional

commerce ha is vial o he U.S. economy.

Enforcement of foreign money judgments and arbitral awards

Foreign law bans may also hwar he enorcemen o oreign money judgmens and

arbiral awards in sae cours, which have become increasingly common in a global

business environmen. Consider, or example, an Arizonan rancher who obains

judgmen agains an inernaional livesock company or breach o a loan agreemen

in a Mexican cour. Te livesock company operaes ou o Mexico and Arizona

and has imporan asses in boh jurisdicions. Te rancher may hereore seek o

enorce he judgmen in his home sae o Arizona.175 Sae cours are generally in

avor o recognizing oreign money judgmens as long as cerain jurisdicional and

procedural requiremens are me.176 In order or a cour o do so, he procedures

o a oreign cour mus be compaible wih undamenal noions o decency and

airness,177 bu hey need no comply wih he radiional rigors o American due

process.178 Bu he Arizona oreign law ban invalidaes he use o oreign law ha

does no comply wih ederal or sae law, hrowing ino jeopardy he abiliy o he

Arizona rancher o collec on a money judgmen in a convenien cour.

Te same problem would arise i he dispue had been decided by an arbiral

ribunal in Mexico. Federal and inernaional law179 require sae cours o enorce

oreign awards as long as he arbiraion mees he minimal requiremens o

airness adequae noice, a hearing on he evidence, and an imparial decision


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by he arbiraor.180 Since paries have reely consened o a less ormal means o

dispue resoluion, hey should no expec he same procedures hey would nd

in he judicial arena.181

Bu sae cours acing under a oreign law ban may adop an unduly sringen

approach, reusing enorcemen when oreign proceedings deviae rom specicprocedures ha are considered consiuionally necessary o saisy he require-

mens o due process in he Unied Saes.182 Tis would no only undermine

he goal o cerainy in commercial relaions bu could resul in hosiliy o he

enorcemen o U.S. judgmens and awards in oreign counries. Te very reason

or commercial arbiraionspeedier, less cosly, and more exible resoluion o

dispueswould also be deeaed.

Te range o pracical problems described above will hur American amilies

and businesses he mos. Family members may be displaced rom heir homes,

children may be unairly separaed rom heir parens, and spouses may experi-ence grave unairness in already raugh divorce proceedings. In he commercial

arena he legal uncerainy surrounding oreign law bans will creae complicaions

in resolving cross-border dispues and may even deer oreign cliens and invesors

rom doing business in cerain saes.


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Discriminatory impact o oreign law bans | www.americanprogress.o

Discriminatory impact

of foreign law bans

Te previous secions oulined he consiuional inrmiies and pracical difcul-

ies creaed by oreign law bans even i here is no indicaion o discriminaory

eec. Bu, as he hisory o hese bans shows, ani-oreign law measures have

been pushed, in large par, by hose who openly advocae an ani-Islamic agenda.

Alhough his repor does no atemp o analyze he bans under he compli-

caed jurisprudence ha governs claims under he Firs Amendmen and Equal

Proecion Clause o he U.S. Consiuion, i is worh noing ha he discrimina-

ory purpose o oreign law bans makes hem suscepible o consiuional chal-lenge. Te requenly broader religious-reedom proecions aorded by sae laws

provide an addiional avenue or challenging hese bans.183

Tere is signican evidence ha oreign law bans are mean o arge Muslim

religious observance despie he removal o specic reerences o Islam.

As noed previously, hese bans are based on model legislaion draed by David

Yerushalmi,184 he ounder o he ani-Sharia movemen, and lobbied or by ani-

Muslim groups such as he Cener or Securiy Policy and AC! For America.185

When ederal ofcials rejeced hese concerns abou Sharia as unounded,

Yerushalmi and his ellow aciviss changed acics. I you can move policy a he

ederal level, well, where do you go? asked Yerushalmi in aNew York imes aricle.

You go o he saes, he responded, answering his own quesion.186 Aware ha

laws explicily argeing Islam would be viewed as an unconsiuional atack on

religious libery, Yerushalmi sough o cra legislaion ha would provoke conro-

versy and suspicion abou Muslims wihou reerring o Sharia direcly.187 Drawing

inspiraion rom he ani-oreign law movemen, he broadened he model law o

cover oreign law more generally.188

According o aNew York imes aricle, Yerushalmis allies in he saes drummed

up ineres in he law among ea Pary and Chrisian groups and began recruiing

dozens o lawyer-legislaors.189 Tese eors culminaed in he early versions o

he ban, which passed in ennessee in May 2010 and a monh laer in Louisiana.


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Alhough hese wo bans and subsequen ones are careully draed o avoid any

reerence o Sharia, sae legislaors have been less circumspec in heir language

abou he inen o he oreign law ban:

Kansas: During he legislaive debae in Kansas, Sen. Susan Wagle (R-Wichia),

a key supporer o he law, declared ha she endorsed he law because, as shepu i, Sharia law deprived women o heir righs.190 Te opeka Capial Journal

repored ha, Rep. Janice Pauls, D-Huchinson, old her colleagues i was

imporan o voe or i [he bill] o save o Shariaa view shared by Rep.

Peggy Mas, R-Emporia.191 Sen. Chris Seineger (R-Kansas Ciy), an opponen

o he bill, noed ha supporers o he bill inundaed him wih maerials ha

explained how Muslims are rying o ake over he Unied Saes hrough he

imposiion o Sharia.192

Tennessee: When he oreign law ban came beore he sae legislaure, is spon-

sor, Sen. Dewayne Bunch (R-Cleveland), ofcially credied Joanne Bregman asis key archiec.193 Bregman, who esied in sae legislaive hearings in suppor

o he ban, is an atorney or he ennessee Eagle Forum, which is an afliae

o he eponymous organizaion led by longime conservaive acivis Phyllis

Schlay.194 Boh Bregman and he conservaive advocacy group ennessee Eagle

Forum are credied in a recen CAP repor iled Fear, Inc. as being responsible

or ani-Sharia eors195 and ani-Muslim hyseria in he sae.196 Aer he oreign

law ban passed in June 2010, Bregman boased ha ennessee was leading he

counry in prevening Shariah rom creeping ino our legal sysem.197 Indeed,

he oreign law ban se he sage or he saes mos high-prole ani-Sharia

iniiaive o dae: a bill ha makes adhering o Sharia a elony punishable by 15

years in jail.198 Rep. Judd Maheny (R-ullahoma), who inroduced he bill in

February 2011, said ha i was given o him by he ennessee Eagle Forum.199

Louisiana: Te co-auhors o he ban, ormer Rep. Ernes Wooon (R-Belle

Chase) and Sen. Daniel Mariny (R-Jeerson Parish), cie he atemps by

Muslim immigrans o cie enes o Shariah law in cours across he naion as

he impeus or enacmen o he new legislaion.200 Te Cener or Securiy

Policy declared ha he ban, which was signed ino law in 2010, placed

Louisiana a he oreron o he gh agains Sharia.201

Florida: Te curren ani-oreign law bill in Florida is co-sponsored by Sae

Sen. Alan Hays (R-Umailla), who likened Sharia o a dreadul disease.202 In

campaigning or a similar bi ll in 2012, Hays disribued yers and bookles


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Discriminatory impact o oreign law bans | www.americanprogress.o

o ellow lawmakers eniled Shariah (sic) Law: Radical Islams hrea o he

U.S. Consiuion.203

Tese ypes o saemens by legislaors and supporers o oreign law bans cer-

ainly raise he possibiliy ha he laws will be invalidaed as inended o discrimi-

nae agains Islam. Much will depend, o course, on how cours apply hese lawsand wheher he hosiliy o Islam ha moivaed hem is reeced in how he

bans are applied. A he very leas, cours aced wih oreign law bans should exer-

cise he greaes care in ensuring ha he discriminaory purpose underlying hese

bans does no inec heir judgmens in individual cases.


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Conclusion | www.americanprogress.o

Conclusion

Eors o pass oreign law bans around he counry are par o a broader move-

men o spread misconcepions and sereoypes abou Muslims and heir aih.

In service o heir saed ani-Muslim objecives, supporers o hese bans have

disored how U.S. cours rea oreign and religious law in ransnaional commer-

cial dispues and amily law cases.

Foreign law bans undermine he careully calibraed mechanisms ha cours

have developed o deal wih oreign and inernaional law. Te broad sweep ohese measures hreaens o creae numerous pracical problems, paricularly or

American amilies and businesses. Prohibiions agains he use o oreign law

could disrup he rouine enorcemen o oreign laws and judgmens in divorce,

adopion, and child cusody cases, and could inroduce considerable uncerainy

ino religious arbiraion proceedings.

Te bans also cas doub on he righs and duies o commercial paries in iner-

naional business dispues, poenially leading o excessive liigaion and unneces-

sary business coss. Te mere presence o oreign law bans signals o he res o

he world ha a leas some pars o he Unied Saes are hosile o inernaional

commerce, which could poenially deer oreign cusomers and invesors. Te

Unied Saes has already slipped down he ranks o global compeiiveness,204 and

ani-oreign law measures hreaen o isolae he naion even urher.

Sae legislaors aced wih pressure o pass hese bans should rejec hem because

o he discriminaory message hey convey and he pracical problems hey creae.

Te bans should also be repealed in he six saes where hey have passed. Foreign

law bans are a soluion in search o a problem, bu i hese bans become law, saes

may soon be searching or soluions o he problems hey have creaed.


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About the authors and ack nowledgements | www.americanprogress.o

About the authors

Faiza Patel serves as co-direcor o he Brennan Ceners Libery and Naional

Securiy Program, which works o advance eecive naional securiy policies ha

respec Consiuional values and he rule o law. She is also a member o he U.N.

Human Righs Councils Working Group on he Use o Mercenaries, and was ischair rom 2011 o 2012. Beore joining he Brennan Cener, Pael was a senior policy

ofcer a he Organizaion or he Prohibiion o Chemical Weapons a Te Hague,

and clerked or Judge Rusam S. Sidhwa a he Inernaional Criminal ribunal or

he ormer Yugoslavia. She is auhor o A Proposal or an NYPD Inspecor General

wi

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