Foreign Laws are NOT Coming to Take Over the United States Legal System By Said Jabbour

Foreign Laws are NOT Coming to Take Over the United States Legal System

By

Said Jabbour

The United States is a melting pot of cultures.[1] This statement has been repeated throughout U.S. history, and has even influenced landmark Supreme Court decisions.[2] The idea is that the United States is a nation of multiple cultures coming together to create a national identity while maintaining people’s individuality. This concept is memorialized in our educational system which seeks (at least in theory) to preserve students’ individuality while imparting traditional societal norms.[3] However, this does not mean that we, as a nation, should have multiple sets of laws and rules to accommodate the needs of each and every culture. What should happen is a give-and-take situation where each culture is assimilated into the general national identity to form one whole unit, not a unit of multiple wholes. That is the basic concept of a melting pot; it is a pot where multiple ingredients go in and mix to become one dish.[4]

This article will not deal with situations where the courts of the United States apply foreign laws to a dispute after going through a “conflicts of laws” analysis, or situations where US courts recognize foreign decrees because of “comity.”[5] The focus of this article is on whether the United States could ever honor the decisions of independent tribunals that apply and impose foreign laws. For the purpose of simplicity, this article will focus on the recent outrage spawned by rumors of Sharia law tribunals in Texas. The article will begin by briefly introducing the controversy that inspired this article then move on to present potential argument which dispel the fear that disagreeable foreign laws will influence local decisions.

Back in January (2015), chain E-mails went out about a sharia law court in Irving, TX.[6] Outrage ensued by conservative members of society which prompted the Mayor of Irving, Beth Van Duyne, to go to Facebook with a post that outraged Muslims in Texas.[7] The mayor said that Texas law will not recognize applications of foreign law that violates public policy, statutory, or federal laws, and proceeded to push a bill that codifies this idea.[8] That bill is what is now causing outrage among Muslims in Texas who believe the law is directed at them.[9]

The entire dispute summarized above, and the outrage felt by both the Muslim citizens opposing the Bill and the residents applauding it, is completely unfounded because the bill simply codifies a well-established concept of U.S. law. The idea that U.S. law reigns supreme and supersedes all other laws is first and foremost explicitly stated in the U.S. Constitution in the Supremacy Clause.[10] Additionally, the United States Constitution grants legislative power only to a fixed set of legislative bodies (congress and state legislatures).[11] Case law has allowed Congress to delegate some authority to administrative agencies despite this provision,[12] but this delegation is so severely limited that it would be nearly impossible to contemplate that Congress would delegate any rule-making power to a private tribunal. So, the fear from the chain E-mails is (as is usually the case) completely groundless because no one can create laws that will bind courts in their decisions.

Despite the Constitutional discussion above, many still fear that the tribunals will be able to put their laws in force by influencing court decisions. The fear stems from U.S. court decisions that apply foreign laws to settle disputes in the United States. This fear is also groundless because any application of foreign laws is fraught with legal analysis on Choice of Laws and Comity, and will likely fail this analysis.[13] In a very simple introduction to the topic of comity, courts will look at three factors in deciding whether to apply a foreign decision: (1) the competence and civility of the foreign court, (2) whether there was fraud in obtaining the judgment, and (3) whether the judgment “violated American public policy notions of what is decent and just.”[14] In deciding all these questions, it is important to keep in mind what exactly courts consider as American public policy and civil. The simplest way to think about American tradition is from the cases on substantive due process, where courts state that substantive rights[15] are determined by traditions exemplified in the history[16] of Western civilization based on Judeao–Christian moral and ethical standards.[17] It is very likely that the most feared Sharia law regulations do not meet the standards of this test. One particular Sharia law which comes to mind is the one sanctioning (almost applauding) honor killings.[18] Honor killings allow a male family member – a father, brother, or even first cousin – to slaughter a female family member for disgracing the family name. And what is the “disgrace to the family name in question”? It could be having pre-marital sex with a male (which, to the chagrin of over-protective fathers everywhere, is illegal), eloping with a man that the family does not approve of, or even – GASP! – dressing inappropriately. Obviously (I hope), such foreign laws are at odds with traditional American values and would fail the test on Comity.

In conclusion, the only thing that the Sharia tribunals can do is settle private disputes in a private manner that does not involve the intervention of any law. Such tribunals exists everywhere throughout the U.S. in the business context (where businesses settle disputes privately through negotiations or through private arbitration), as well as in the family context where Catholic and Jewish families settle their disputes in private religious tribunals.[19] Courts do not accept the decisions of such tribunals as final and they do not have to (see discussion above). This means that people who are unsatisfied with the findings of such tribunals can go through the court system to settle their disputes regardless of what the tribunal decides. Therefore, the fear that Sharia law will take over is completely groundless.

[1] An age-old metaphor acknowledged by the U.S. Department of state. About This Issue, Becoming American: Beyond the Melting Pot, March, 2011, at 1, available at http://photos.state.gov/libraries/korea/49271/march_2011/en_0111_immigration.pdf.

[2] See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003).

[3] See generally, Margaret Stimmann Branson & Charles N. Quigley, The Role of Civic Education (1998), available at http://www.gwu.edu/~ccps/pop_civ.html

[4] A melting pot is a “process of blending that often results in invigoration or novelty,” or “a place (such as a city or country) where different types of people live together and gradually create one community.” Merriam-Webster dictionary, http://www.merriam-webster.com/dictionary/melting%20pot (last visited Oct. 15, 2015)

[5] “Comity is the ‘recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protections of its laws.’” Daewoo Motor America, Inc. v. General Motors Corp., 459 F.3d 1249, 1257-58 (11th Cir. 2006)

[6] W. Gardner Shelby, Sharia court in Irving, Texas? Negative (July 17, 2015, 2:56 PM), http://www.politifact.com/texas/article/2015/jul/17/sharia-court-irving-texas-negative/

[7] Top Right News, Muslims FURIOUS at This Texas Mayor After She STOPPED Their ‘Sharia Court’ – See Her EPIC Response (September 6, 2015), http://toprightnews.com/muslims-tried-to-bring-sharia-law-to-texas-but-they-didnt-count-on-this-mayors-epic-response/ (please note that I only used this source because it has a picture of the Mayor’s Facebook post, I do not adopt the arguments or opinions in that article).

[8] S.B. 531, 84th  Leg., Reg. Sess. (Tx. 2015)

[9] AM, TEXAS Bans Sharia Law…Democrats and Muslim OUTRAGED, Conservative Post (Sept. 6, 2015), http://conservativepost.com/texas-bans-sharia-lawdemocrats-and-muslim-outraged/ (publishing a statement by a Muslim Irving resident, Omar Suleiman, who believes the law is an “Anti-Sharia bill”)

[10] U.S. Const. art. VI, cl. 2

[11] U.S. Const. art. I, §1. See also, United States v. Shreveport Grain & Elevator Co., 287 U.S. 7785 (1932) (stating that “the legislative powers of Congress cannot be delegated).

[12] Wayman v. Southard, 23 U.S. 1, 41 (1825) (stating that Congress may delegate “powers which [it] may rightfully exercise itself.”)

[13] See, Daewoo Motor, supra note 5, at 1257-58.

[14] Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227 (11th Cir. 2004)

[15] Substantive rights are those that are not enumerated in the constitution but are implicit to the concept of ordered liberty as viewed through the prism of an Anglo-American regime of liberty. Duncan v. Louisiana, 391 U.S. 145, 163 (1968)

[16] History in this context means “our laws and traditions in the past half century.” Lawrence v. Texas, 539 U.S. 558, 571-572 (2003)

[17] Id.

[18] See generally, Amira El Azhari Sonbol, Women of the Jordan: Islam, Labor, and the Law (Syracuse Univ. Press ed., 1st ed., 2003)

[19] Dina Samir Shehata, Anti-Sharia Bill Dead, but Sentiment Alive, Third time not a charm for foreign law ban in Texas, The Austin Chronicle (May 22, 2015), http://www.austinchronicle.com/news/2015-05-22/anti-sharia-bill-dead-but-sentiment-alive/ (giving an example of a Jewish family tribunal: Beth Din).

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