Ruling on Foreign Laws

Does a judge have to uphold a law or ruling from a foreign country?  That is a great question and I get asked that all the time from people that have immigrated here to the United States.

There are now six states — Arizona, Kansas, Louisiana, Oklahoma, South Dakota, and Tennessee — where state legislatures have passed laws prohibiting judges from considering foreign laws; about 20 other states have tried or are trying to pass similar laws. Such a ban is also part of the Republican Party platform in this years election cycle.

Some lawyers have been involved many cases that involved some component of Shariah, or Islamic law for example and know firsthand how complicated things can get.

In one example, a woman claimed she was married to a man according to Islamic law in her native west Africa. The man asserted there was no valid marriage, leaving a judge to decide whether the two were ever legally married in the first place.

If the judge rules they were married, there will be a divorce and she will receive alimony and a share of marital assets. If the judge rules that there is no marriage, then the woman will be left with nothing from her relationship.

To make a ruling, the judge will need to consider what Shariah, as understood in one corner of western Africa, says about what constitutes a legal marriage. He will likely have to consult Islamic law experts and apply what he learns to his decision.

But what if American judges were prohibited from considering Shariah and other foreign laws, as many state and national Republican politicians want to see happen?

A ban of Shariah would strip judges of their ability to fully and fairly consider such cases, and deprive Muslims of their right to marry and divorce according to their religious beliefs.

Counselors and activists estimate that roughly one in three Muslim marriages in the U.S. end in divorce. Many Muslim-Americans who divorce want their marriages dissolved in accordance with Islamic law. That means having dowries and other provisions of marriage contracts enforced, as well as obtaining an Islamic divorce certificate, which imams in the U.S. issue only after a civil divorce has been finalized.

Muslim lawyers say the Shariah bans violate the constitutional freedom of religion, right to equal protection, and freedom of contract, and could complicate the task of divorcing couples who were married according to Shariah.

This is a very complicated issue.  It will be interesting to see how it is handled at the Federal level but for now in Arizona judges are prohibited from considering Shariah or any other foreign laws.

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