As most readers of this blog already know, a substantial part of my personal
International Family Law. We litigate cases in the United States and throughout the world.
So it is with alarm that I'm following the emerging trend of state
legislatures passing laws that ban courts from considering Sharia law
in their courtrooms.
You might consider Sharia law in US court rooms a fairly narrow problem
and you would be right. But that doesn't end the problem nor is an
accurate assessment of the larger issue.
The narrower problem is the obvious violation of the First Amendments prohibition
on passing laws which impinge upon religious freedom. That problem, however,
is so substantial that it creates the larger issue. State laws attempt
to avoid the First Amendment violation by banning consideration of far
more than Sharia law. The state laws ban courts from considering any International
Law at all.
So far, seven states have enacted such legislation: Louisianna, Tennessee,
Oklahoma, Kansas, Arizona, South Dakota, and just last month, North Carolina.
Georgia's General Assembly has entertained such a law, but has not
The blanket prohibition against the consideration of International Law
would invalidate decisions made in foreign forums so that they could not
be enforced here. Further, it becomes far less likely that our laws and
our judgments would be enforced in foreign lands. There's less certainty,
less uniformity, less peace, more chaos. What could go wrong?
And in case anyone has forgotten, the United States remains one of the
largest players on the planet. If we opt out of the international community
by prohibiting the interweaving of laws foreign and domestic, we are handing
the world over to the next great super power to be who isn't isolationist
about integration when it works to their advantage.
So prohibiting the consideration of Sharia law is a violation of the Constitution
and prohibiting the consideration of International Law is just plain suicidal.
(Unless you believe that Islamic nations arensecretly stacking judges
in the judiciary and closet Muslims are getting elected to state houses
in high numbers, at which point you need to quickly don your tin foil
hat). All the outrage about the consideration of Sharia Law and International
Law is yet another ridiculous distraction to actually governing our states
and our Nation.
Let our judges do their work. They are almost always wise people. Foreign
prophets might weigh in on how another culture would resolve an issue
and foreign court's custody rulings will be considered by an American
judge in International Family Law, but, as almost always, justice will
prevail and the sun will rise another day.