Alabamans Defeat Imaginary Sharia Threat

Alabama’s Amendment 1, drafted by a lawyer who fears the non-existent problem of American courts applying Sharia law, passed on Tuesday with 72 percent of the vote. The amendment to the state constitution declares that Alabama courts “shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States”. Many reports on the amendment (like the preceding link) claim that it bans the application of foreign law altogether, but Eugene Volokh disputes that:

Normal American “choice of law” principles often call for the application of foreign law in cases that involve foreign transactions, for instance in some tort cases arising from injuries in foreign countries, determining the family status of people who were married or adopted children in foreign countries, and more. American courts wouldn’t enforce foreign rules that violate Americans’ free speech rights, equal protection rights, and so on; but in the great bulk of cases in which foreign law would be applied, there would be no such constitutional problem. The Alabama amendment wouldn’t bar use of foreign law in such cases.

What it would do is less clear, Paul Horwitz explains, because the prohibition on applying foreign laws that contradict Americans’ constitutional rights is, er, “already the law in every state, including Alabama”. The redundant amendment, Horwitz argues, is a waste of time and money that will likely have unintended consequences and serves only as a gesture of hostility toward Islam:

Our state and federal constitutions prohibit discrimination against religion. An explicitly anti-Muslim law would be unconstitutional. But hostility to Muslims, or to any minority, always buys a few votes in some corners. So we now have the worst of both worlds. The law, in its past and present versions, is driven by religious hostility. But in order to avoid being struck down, the current amendment bars courts from recognizing Jewish or Christian (or, yes, Islamic) prenuptial contracts, or enforcing judgments by Southern Baptist arbitrators. At least, it would, if those judgments violated state or federal law. But our courts already forbid that. Amendment One is literally not worth the paper the law would be printed on–and printing laws costs money.

Even the state’s conservative evangelicals didn’t get behind the amendment:

Although anti-Shariah bills are often proposed and supported by conservative Christians, Amendment 1 was actually heavily criticized by many religious groups in the Cotton State — including several prominent evangelical Christians. Organizations such as Greater Birmingham Ministries publicly decried the measure, and Randy Brinson, the president of the Christian Coalition of Alabama, blasted the law as “just silliness.” Brinson argued that the bill did not actually protect “Christian values,” and passing it could potentially jeopardize foreign adoptions, marriages to people outside of the U.S., and religious liberty. “This is a tremendous waste of effort. It’s a waste of time and it costs money,” Brinson said ahead of the vote.

Beyond the phantom menace of Sharia, Mark Joseph Stern characterizes Amendment 1 as an effort “to nullify Supreme Court decisions that lean on foreign law”, particularly regarding capital punishment:

According to the amendment, any decision that uses international law could not legally be applied in Alabama courts, since citing it would involve the “application” of foreign law. A state judge couldn’t overrule the execution of a minor based on Roper, since Roper relied in part on international law. Nor could she annul the conviction of a gay person for having gay sex, since Lawrence cited foreign courts. The execution of the mentally retarded, too, would be back on the table in Alabama; in fact, much of the Supreme Court’s modern death penalty jurisprudence would now seem to be inapplicable in the state. This is not some speculative overinterpretation of a poorly worded amendment; overturning established death penalty law was a stated goal of the amendment’s chief drafter. No doubt a team of lawyers is already poring over Supreme Court rulings, searching each decision for a reference to international law. Once they’ve found one, they can alert state judges: Use this ruling, and you’ll be breaking the law.

Looking over the situations in which Alabama courts would typically come into contact with foreign law, Amanda Taub remarks on the legal uncertainties the amendment creates:

Start with disputes governed by foreign law, which are common. Consider, for instance, what might happen if a couple was married overseas, but then sought a divorce in Alabama. Or if they adopted a child overseas, but then a custody dispute came before Alabama courts. Such cases would, by necessity, require Alabama courts to consider foreign law in order to determine the validity of the marriage, adoption, or custody agreement. After Amendment One, it’s not clear whether, or how, they will be able to do so.

It’s also extremely common for contracts to be governed by foreign law, through what is called a “choice of laws” clause. Amendment One carves out an exception for “Alabama business persons and companies,” who may decide to use foreign law in Alabama Courts. But it’s not clear how that exception will be applied, because the very same clause says that “the public policy of Alabama is to prohibit anyone from requiring Alabama courts to apply and enforce foreign laws” — which appears to directly contradict the exception. That’s a potential nightmare for companies that do business in the state, who now don’t know if their choice of law clauses will be enforced, or if global contracts will now become subject to uncertain interpretation as soon as they cross Alabama state lines.

Furthermore, Faisal Kutty points out, “the consequences” of such restrictions on Sharia and foreign law “may be counterintuitive”:

In August 2012, for instance, just one month after Kansas passed Senate Bill 79, a state court found its hands tied when Elham Soleimani sought the enforcement of the mahr (dowry) provision in her Islamic marriage contract. Her husband, Faramarz Soleimani, had agreed to pay 1,354 gold coins—valued at $677,000 at the time—in the event of divorce. Faramarz agreed to this at the time of the marriage, given that it was his second marriage and Elham was 24 years his junior. The Johnson City District Court refused to enforce Elham’s claim for various reasons, the most significant being the religious nature of the contract. In its 28 August 2012 ruling, the court concluded that enforcing the agreement would “abdicate the judiciary’s role to protect such fundamental rights, a concern that was articulated in Senate Bill No. 79.” Essentially, the court took the position that enforcing the Islamic contract would violate the foreign law ban and the separation of church and state doctrine under the Establishment Clause of the First Amendment of the U.S. Constitution. Elham lost her claim to her dowry thanks to the law, which Republican State Senator Susan Wagle introduced as “a vote to protect women.” Elham would surely beg to disagree.