A Foreign Law Fix?

The fear that Sharia law will meld with American laws is not original

By Kellyn Brown

Kalispell Republican Sen. Keith Regier has introduced legislation that would ban foreign laws in Montana courts. It’s being called an “anti-Sharia law” measure despite the fact that the bill doesn’t explicitly mention Islamic religious governance.

The description, however, is spot on, at least if you watched proponents of the ban speak at the Senate Judiciary Committee hearing last week, many of whom feared Sharia law would somehow displace the constitutions of the United States and Montana.

The fear that Sharia law will meld with American laws is not original. In this era of fear, it’s what many state Legislatures fear the most. States across the country want to make certain that Muslim rules don’t interfere with ours even when there is no evidence that they have.

In Oregon, a state senator has introduced similar legislation, but the target is more specific. It says simply: “A court of this state may not consider Sharia law in making judicial decisions.”

The bill prompted the following response from a spokesman for the Council on American-Islamic Relations: “Has the anti-unicorn legislation been introduced yet? Because it’s of equal validity.”

In Idaho, the Legislature is also considering passing a new law that bars courts from making decisions based on foreign or Islamic legal codes despite the fact that no judge ever has.

Apparently, the language in these proposed laws is inspired by the American Policy Alliance, which aims to “protect American citizens’ constitutional rights against the infiltration and incursion of foreign laws and foreign legal doctrines, especially Islamic Sharia Law.”

Oklahoma was a trailblazer in protecting its citizens from what its lawmakers perceived as creeping Sharia law. It amended its constitution to bar it from ever infiltrating its courts — just in case. When a judge found the amendment violated the U.S. constitution, it changed the language from “Sharia law” to “foreign law.”

The latter is the language in Regier’s bill. It’s broad enough to include every foreign country and to have all sorts of unintended consequences.

Eugene Volokh, who writes for the Washington Post and teaches at UCLA School of Law, highlighted a number of red flags in Montana’s version of banning foreign laws. The most compelling of which — at least based on our proximity to that country — involves a hypothetical situation where two businessmen settle a legal dispute in Canada.

Canadian courts, as Volokh points out, sit without a jury unlike the United States. So, when a businessman who was found guilty of defrauding his fellow Canadian moves to Montana, that verdict, issued in a foreign court with foreign laws, is no longer valid.

If this law passed, it could also affect family law. How Montana courts would decide whether divorces and marriages in other countries are valid or legal could also be problematic, especially, according to Volokh, if it took place under a legal system that denied “the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution.”

Volokh’s advice, if our state lawmakers are determined to pass such a law, is to narrow it to avoid these potential problems. But it’s worth asking if the state Legislature is really spending its time wisely trying to fix a problem that doesn’t exist. I covered cops and court for years and can’t name one case where an attorney or judge mentioned Sharia law or any other foreign law.

With Montana’s lean budget and the state’s need for infrastructure funding, perhaps our senators’ and representatives’ energy can be spent on something worth fixing.

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