South Carolina Bill Would Nullify Islamic Law in State Courts

Columbia, S.C. (AP) - A South Carolina proposal would prevent the state's courts from enforcing foreign law, including Islamic Sharia law, though Muslim advocates say it could essentially ban religion from mundane matters such as weddings and even burials.

The bill makes no reference to a specific religion or country, though its sponsors acknowledge they worry about the ultraconservative tenets of Sharia law, or Islamic religious law. At least 13 states have introduced similar measures this year, according to the National Conference of State Legislatures.

Sen. Mike Fair, a Greenville Republican who is the bill's main sponsor, said there was a need to clarify that cultural customs or foreign laws don't trump U.S. laws. He pointed to a 1993 divorce case in Virginia, in which a court deemed a marriage legal based on Islamic tradition. That decision was overturned.

A South Carolina proposal would prevent the state's courts from enforcing foreign law,

A ban on applying any "foreign law" is just nuts.

Example: a South Carolina company buys goods from a British company. The contract says that U.K. law governs. The South Carolina company doesn't pay, and the U.K. seller sues them in South Carolina. How can the court not apply the law selected in the contract?

Example 2: a South Carolina resident goes on vacation in Canada and gets into an auto accident. The injured Canadian driver sues the South Carolina driver in South Carolina court. How can the court not apply Canadian traffic laws in deciding which driver was at fault?

I could go on all day. The point being that, however well intentioned they are in trying to keep Sharia law out of the U.S. (certainly a good thing), drafting a ban on applying "any foreign law" is stupid.

Alright, this bill at least isn't as insane as the Arizona bill from last year. The South Carolina bill only prohibits the enforcement of foreign law "if it would violate a constitutionally guaranteed right of this State or of the United States." That actually seems like a good idea unless I'm missing something - if nothing else, it should at least help fight "libel tourism".

The Arizona bill barred enforcement or even consideration of foreign law in Arizona courts, whether constitutional rights were implicated or not. Furthermore, it provided that reliance on foreign law by an Arizona judge was "grounds for impeachment and removal from office." Fortunately, it never made it out of committee.

Perhaps the wording needs some work — we’ll let you brilliant lawyers help us out with that. Here’s what I do know:

2. In NO CASE should “foreign law” take precedence over State law in the lives of the citizens of South Carolina with regard to criminal behavior. Example: Shari’a law regarding MARRIAGE (men can marriage little girls, or up to 4 females) IS NOT ALLOWED! “Honor killing” is not ACCEPTABLE!”

3. In the case of Contract law, foreign trade, etc., that has FAR more to do with FEDERAL law, treaties, etc. than with State law.

It appears there are fewer conflicts than critics claim. In any event, the conflicts CAN be sorted out to protect our STATE (and our NATION) from the evil that is Shari’a Law! And for that matter, our citizens ought not to be subject to any other nations laws on their own soil. Period.

1. In South Carolina — State Law is the priority EXCEPT in the SPECIFIC cases where the Constitution of the United States gives authority to the Federal Government — and ONLY in those enumerated cases.

That's generally true. However, state law concerning conflict of laws often calls for the application of the law of other states or even of foreign countries when the subject matter of the case occurred in another jurisdiction. Now, conflict of laws is a fairly complicated area of law - there are many multi-volume treatises on the subject and it has evolved in different ways in different states over the last century. Suffice it to say that the aim is to apply the the most appropriate law. For example, it doesn't usually make much sense to apply: South Carolina business organization law to the charter of a company incorporated in England; South Carolina contract law to the issue of whether a contract was formed in Germany; or South Carolina tort law to a car accident that happened in Canada.

Keep in mind that this isn't because the foreign law applies in South Carolina, but rather that South Carolina law has determined that the foreign law is the most appropriate to the case. Also note that South Carolina, like every other state, will generally refuse to apply a foreign law when it would be repugnant to South Carolina public policy.

2. In NO CASE should “foreign law” take precedence over State law in the lives of the citizens of South Carolina with regard to criminal behavior. Example: Shari’a law regarding MARRIAGE (men can marriage little girls, or up to 4 females) IS NOT ALLOWED! “Honor killing” is not ACCEPTABLE!”

That doesn't happen as is. Crimes committed in South Carolina are already tried in South Carolina courts under South Carolina law. No American court applies foreign criminal law to any American criminal trial that I've ever been aware of.

Now, there was that case in New Jersey where a "Sharia defense" was raised in a domestic restraining order case where the husband was accused of spousal rape, which I think is the sort of thing both you and this bill are responding to. The defense was not arguing that Sharia law applied, but rather that the husband actually believe that what he was doing was ok due to his culture, and thus lacked the criminal intent necessary for the restraining order to be issued. This was a ridiculous defense, and while the trial court bought it, it was overturned on appeal.

That case really had less to do with applying a foreign law than it did with a baloney sort of "mistake of law/cultural insanity" defense and a family court judge incompetent enough to buy it. Luckily, the NJ appellate court unanimously rejected it.

3. In the case of Contract law, foreign trade, etc., that has FAR more to do with FEDERAL law, treaties, etc. than with State law.

Actually, you might be surprised to know that you have it more or less backwards. Other than some treaties such as the Covention on the International Sale of Goods (CISG), federal law has virtually nothing to do with international contracts. They are almost entirely a state law matter, even when litigated in federal court. If, say, a South Carolina company makes a contract with a company in Germany, that law will usually be governed either by South Carolina law or German law - there is really no such thing as "federal contract law".

I can't imagine a citizen of a foreign country can sue a US citizen in a state court for an offense that was committed in a foreign jurisdiction.

They can and do. Now, there are often venue problems - the court is far from the witnesses and the site of the tort and the judges aren't familiar with the law. That's what a motion for forum non conveniens is for.

There was a heavily cited Supreme Court case, Piper Aircraft Co. v. Reyno, where the estates of six Scots killed in a plane crash in Scotland sued the plane and propeller manufacturers in American court - the Supreme Court ultimately upheld the trial court's dismissal of the case on forum non conveniens grounds. It was not because it would be legally improper for them to sue in the United States, but rather that the federal court in Pennsylvania was inconvenient to hear the case, and that the case would be better heard in Scotland.

What happens more often, though, is that a citizen of a foreign country will sue the US citizen in his (the plaintiff's) own country, and, after obtaining a judgment, will bring an action in the US defendant's state court to enforcement the judgment. The US state court will typically enforce that judgment unless it can be shown that the defendant had no notice or opportunity to be heard, the foreign court lacked subject matter jurisdiction, there was fraud on the court, or enforcement of the judgment would be repugnant to state public policy. They will do this as a matter of judicial comity even though the United States has signed no treaty requiring the enforcement of foreign judgments.

You are correct that service of process on a US citizen sued in foreign court would be made through the State Department - that is the procedure provided for in the Hague Convention on international service of process, to which the United States is a signatory. However, service of process on that US citizen in an action on the foreign court's judgment in US state court would be governed by state law.

"The South Carolina bill only prohibits the enforcement of foreign law "if it would violate a constitutionally guaranteed right of this State or of the United States."

First, you're right. Despite how it's described in the article (and it's described poorly, if not entirely inaccurately), this particular state statute isn't as crazy those passed in Tennessee and Oklahoma (OK might have actually been a Constitutional Amendment).

In any event, can you think of any private arbitration agreement that would be enforceable under existing US federal law, or South Carolina state law in instances where contractual obligations violate "constitutionally guaranteed right(s)"?

Neither can I.

Although, I would stipulate that this is South Carolina, so who knows what kind of crazy-ass provisions are secreted away in that state constitution. Of course, even with this state statute, any limitations or prohibitions on binding arbitration established by state law would (I believe) be superseded by the Federal Arbitration Act (see: Southland Corp. V. Keating, 465 U. S. 1).

Which of course begs the question, why. Why go through this ridiculous legislative circus, to prevent something that is already clearly prohibited by existing federal law and volumes of Supreme Court precedent?

After the Legislative body of South Carolina remedies the problems of Sharia Law being forced upon their frail citizens and whatnot, maybe they can then pass additional laws forbidding mad-scientist from creating earth swallowing vortexes, and stuff - 'cause you know, that's a big problem, too.

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