As most readers of this blog already know, a substantial part of my personal practice is 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 passed it.
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.