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More problems with the “Anti-Sharia Law” bill

Posted By Sharon McCloskey On May 23, 2013 @ 4:20 pm In Uncategorized | Comments Disabled

The Brennan Center for Justice released a report last week addressing the consequences of  ”Anti-Sharia Law” bills like H695 [1] now pending in the Senate here.

As pointed out in the Executive Summary, foreign law bans are currently a solution in search of a problem. However, if these bans become law, states may soon be searching for solutions to the problems they have created.

Among the consequences that should be considered:

  • Disrupting family life: Marriage licenses, prenuptial agreements, adoption agreements, divorce decrees and child custody orders may not be honored in several U.S. states simply because they are based on a religious creed or foreign law.

  • Frustrating religious arbitrations: Since most foreign law bans also apply to arbitration tribunals, they call into question the ability of religious believers to settle family and other personal disputes through arbitration.

  • Thwarting choice of law in litigation and arbitration: Commercial parties frequently choose the law of another country to govern how a dispute is resolved. The bans are likely to compel state tribunals to override such a choice in a greater number of cases.

  • Difficulties enforcing foreign money judgments and arbitral awards: Parties may experience difficulties when trying to enforce a judgment or arbitral award obtained in another country that does not protect due process and other constitutional rights in the same way that the United States does.

  • Violating the separation of powers: The separation of powers prevents the concentration of too much power in any one branch of government. Giving state legislatures the power to dictate what legal sources the courts can look at when interpreting the law undermines this fundamental principle of American governance.

  • Invalidating court decisions in other states: State courts are bound to give “full faith and credit” to court decisions of other states. A foreign law ban could affect that arrangement when another state has considered foreign laws.

  • Banning international law: Some of the bans are so broad that they may cover international law. This body of law is part of the laws of the land under the Supremacy Clause and is treated just like federal law. But the bans pull out this category of law for special scrutiny.

The full report, “Foreign Law Bans: Legal Uncertainties and Practical Problems,” can be viewed here [2].


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URL to article: http://pulse.ncpolicywatch.org/2013/05/23/more-problems-with-the-anti-sharia-law-bill/

URLs in this post:

[1] H695: http://www.ncleg.net/gascripts/BillLookUp/BillLookUp.pl?Session=2013&BillID=h695&submitButton=Go

[2] here: http://www.brennancenter.org/sites/default/files/publications/ForeignLawBans.pdf

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