States Enacting Foreign Law Bans Driven by Anti-Muslim Sentiment Will Face Legal and Practical Problems

Today, the Brennan Center for Justice and the Center for American Progress released a report highlighting the unintended consequences of foreign law bans.

Fueled by a growing tide of anti-Muslim sentiment, these bans have gained momentum in recent months, morphing from restrictions on Islamic religious laws and customs (known as "sharia") into broader bans on foreign, international and religious laws in U.S. courts.

Over the last two years, lawmakers in 32 states have introduced and debated such bills. Five states -- Oklahoma, Kansas, Louisiana, Tennessee and Arizona -- have already enacted foreign law bans. Last week, the Missouri legislature sent a similar measure to its governor for signature and at least four more states --Texas, Alabama, South Carolina, and Iowa -- are poised to pass foreign law bans this and next year.

"Supporters of foreign law bans openly advocate an anti-Islamic agenda," said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice. "In addition to spreading fear about Muslims and their faith, they also create legal uncertainties for many American families and businesses and jeopardize how American courts have applied foreign and international law for centuries.

"Foreign law bans are clearly a solution in search of a problem. Proponents of foreign law bans have completely failed to show that sharia or foreign law pose a threat to the American legal system," said Matthew Duss, policy analyst at the Center for American Progress. "The bans send a clear message that states are unreceptive to foreign businesses and individuals, especially Muslims and other minority faiths."

Currently, courts use international and foreign law without much fanfare in ordinary cases, such as where the dispute involves a right under a treaty, or when the parties choose the law of another country to govern a business dispute. But many of the bans seem to require judges to reject any foreign law or judgment that comes from a country which does not protect rights in the same way the United States does -- even if the laws they are being asked to apply do not raise any rights concerns.

"Foreign law bans end up creating confusion about how courts should treat marriages, divorces and premarital agreements with religious or foreign origins," said Amos Toh, fellow at the Brennan Center. "They could also complicate international commercial transactions, limit the bargaining ability of American businesses, and dissuade foreign parties from conducting business in the United States."

If these bans become law, states will soon be searching for solutions to the problems they have created. Instead of discriminating against religious groups and creating unnecessary complications for courts, families, and U.S. businesses, state legislators should reject and repeal these bans.

Read the full report here.

Watch a video of the panel discussion here.

For more information or to speak to an expert, contact Seth Hoy at (646) 292-8369 or seth.hoy@nyu.edu or Anne Shoup at (202) 481-7146 or ashoup@americanprogress.org.