Last night, Alabama voters passed Amendment One, a ballot measure that prohibits Alabama courts from considering "foreign law" when deciding cases. The provision, like a series of similar laws that have been proposed in other states over the past several years, appears to have been motivated by a fear that Muslims could somehow deprive local citizens of their rights by forcing courts to apply Sharia law.
Amendment One is a terrible idea. Not just because it is unnecessary (though it is), or because it is an attempt to codify odious discrimination (though it is), but because the law, as written, has the potential to cause serious problems for ordinary citizens and businesses in Alabama.
Here's what you need to know about it:
Amendment One, like other similar measures around the country, appears to be the result of efforts by conservative groups to present Islam as an insidious, threatening force that Americans need to be protected from.
The amendment was sponsored by State Senator Gerald Allen. In 2011, he sponsored an earlier version of the law, the Sharia Law Amendment, which targeted Islamic law specifically. That provision was withdrawn, partly because a similar law in Oklahoma was found to be unconstitutional.
Although the new version of the law is more neutral in its language, the reasoning behind it is anything but. Conservative commentator Quinn Hillyer warned in the Birmingham News that the "consequences could be dire" if the amendment did not pass, because courts throughout the United States "actually had applied" Sharia law. And the Birmingham-based lawyer Eric Johnston who worked with Allen to draft the amendment said in another interview with the same paper, one of the reasons for the amendment was to protect women whose "rights are compromised by Sharia rights if a lawyer in a custody case says, 'Islam requires you to do this.'"
There is no evidence that Alabama courts are applying Sharia law or law from foreign countries to deprive Alabamians of their rights.
Indeed, there doesn't seem to be any history of them applying Sharia law at all. And, as University of Alabama Law Professor Paul Horwitz points out, even when foreign law does come before Alabama courts, the courts already refuse to enforce contractual provisions that violate state public policy, or state or federal constitutional rights. If that's all the law is intended to do, then it's totally unnecessary.
Some evangelical Christian leaders campaigned against the new law. Randy Brinson, the president of the Alabama Christian Coalition, noted that it could lead to "stigma" for the state. "I understand the sentiment behind this, but Sharia law is not going to be implemented in Alabama, it just isn't," he said in an interview with the Birmingham News.
Scott Douglas, the executive director of the Greater Birmingham Ministries, echoed Brinson, telling the Birmingham News that the amendment would clog Alabama's courts with frivolous lawsuits, and that "they say they want to protect against 'foreign law'? I think, if they check back, Christianity was not founded in Alabama."
It has the potential to cause big, big problems
The biggest issue of all, though, is that Amendment One has the potential to cause some very big problems for Alabama families and businesses.
The amendment prohibits courts from applying foreign law if doing so violates a person or business' rights under Alabama state law or constitution. However, state courts, including those in Alabama, need to be able to interpret foreign law if it's relevant to the case at hand. If Amendment One prevents them from considering it, that could affect the stability of everything from marriages to business deals.
Foreign law does crop up in US courts pretty regularly, but not in the way that proponents of anti-Sharia amendments seem to think. Proponents of laws like Amendment One appear to be worried that courts might for some reason allow Sharia law or other foreign law to trump state law. As the ACLU has detailed in a report on the topic, that concern appears to arise out of a misreading of cases on religious freedom and private religious contracts, such as pre-nuptial agreements. There is simply no evidence that US judges are encountering Sharia law, becoming enraptured with it, and tossing out their statute books.
Rather, there are two main ways that foreign law or religious law can come before a state court. The first is when a case is being litigated in one state (like Alabama), but is governed by the law of a different jurisdiction (like New York, or Germany). The second is when the parties have agreed to arbitrate a dispute over a private agreement by applying religious or foreign law. Both are normal! Both are important! And both have the potential to be screwed up on a massive scale by Amendment One.
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.
Finally, some private agreements, such as prenuptial agreements or contracts between members of the same religious organization, state that they are subject to arbitration under religious law. Amendment One prohibits such arbitrations, if their decisions would violate "any state law" or a constitutional right. Once again, if the rule is read narrowly, this might have no effect — but if it's read broadly, it could invalidate those freely-made arbitration agreements.
In short, this amendment is just really not a good idea. At best, it will be a confusing hassle with little practical effect. At worst, it will turn anti-Muslim bigotry into an expensive nightmare for families and businesses across Alabama, while delivering zero practical benefits to the local citizenry.
Bad idea, guys. Bad idea.