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Alabama Is the Latest State to Try to Ban Foreign Law in Courts

In what some call an effort to demonize the Islamic faith, all but 16 states have recently considered banning their courts from taking foreign, international or religious law into account.

The Alabama Supreme Court building
The Alabama Supreme Court building
FlickrCC/Thomas A
ELECTION 2014: This article is part of our coverage of ballot measures to watch.

In what some call an effort to demonize the Islamic faith, Alabama this fall will become the newest state where voters will deliberately banning their courts from considering foreign, international or religious law.

The ballot measure, “American and Alabama Laws and Alabama Courts Amendment,” would clarify the state constitution to say that that other state laws or foreign law cannot be used in ways that violate state law or rights under the Alabama Constitution or the U.S. Constitution. The unsuccessful precursor to the 2014 measure, also proposed in the legislature by Republican Sen. Gerald Allen, was an amendment for the 2012 ballot that would have explicitly banned state courts from implementing Islamic Shariah law.

Amos Toh, a co-author of a Brennan Center for Justice report that cast such bans as anti-Muslim and “thinly concealed attempts” to demoralize the faith, said the Muslim community remains the target in these wider, foreign law bans.

“The motivation underlying the passage of the legislation is very much a fundamental misunderstanding about Islam and a belief in stereotypes,” he said.

But Allen said the goal of the amendment is to “take every measure” to ensure that the United States and State Constitutions come first in the interpretation of our laws.

“This is not an effort to demonize any religion,” he responded in an email, “but rather an effort to ensure that the laws on which our great country was founded are never eroded.”

Six states have similar foreign law bans, most recently North Carolina’s last year. Missouri also passed a measure banning foreign law last year but Gov. Jay Nixon vetoed the bill because of its potential impact on international adoptions. Oklahoma's voters approved a ban, which explicitly referred to Sharia law, in 2010. But this year it was struck down by a federal appeals court for being discriminatory. Arizona, South Dakota, Kansas, Louisiana and Tennessee all have passed measures banning implementation of foreign or religious laws. Still, the issue has permeated across the country: all but 16 states have considered such a measure in the past five years.

The Brennan Center report, released last year, warns that the bans can have unintended consequences like disrupting marital prenuptial agreements or invalidating court decisions in other states. Especially in divorce and contract law, religious beliefs (like Sharia, orthodox Jewish or Catholic canon) can factor into how judges or arbitrators preside over a dispute. For example, a couple may sign a prenuptial agreement that requires them to go to an imam and that a religious leader must conduct the mediation. If Alabama’s ballot measure passes, it would nullify that requirement.

Toh added the opposition to the ballot measure is still gearing up for the Nov. 8 vote but noted that the proposed ban is something that all people who advocate for religious freedom should be worried about. "This has serious unintended consequences for all religions," he said.

Some are already sounding alarm bells in Alabama. Rev. Richard Killmer, a Presbyterian minister and then-Executive Director of the National Religious Campaign Against Torture penned an op-ed to the Mobile Register earlier this year, noting that no one, including the American Muslim community, wants Shariah to supplant U.S. laws.

“This constitutional amendment was not passed with the public interest in mind, but with the intent of spreading fear and distrust toward our fellow citizens,” Killmer wrote, adding the measure promotes a xenophobic atmosphere. “The gravest danger of all is that other states will follow suit and pass similar amendments.”

Liz Farmer, a former Governing staff writer covering fiscal policy, helps lead the Pew Charitable Trusts’ state fiscal health project’s Fiscal 50 online resource.
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