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.

"Example: Shari’a law regarding MARRIAGE (men can marriage little girls, or up to 4 females) IS NOT ALLOWED! “Honor killing” is not ACCEPTABLE!”

I'm just curious, but do you believe that, without the adoption of this statute, it would be somehow possible for two residents of South Carolina to enter into a private contract that adopts binding arbitration under some kind of Sharia law, where a a US mediator would then, following the relevant foreign law, somehow order or endorse an honor killing and such? You think that's how US federal law and South Carolina law works currently?

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

Nope. State judges, all the time, enforce private arbitration agreements, or consent to jurisdiction or forum selection clauses in questions of contract law. All the time.

By the way, the foreign citizen usually wants to sue in American court if he can, particularly in tort cases. American tort laws, particularly concerning damages, are unusually generous to the plaintiff. Also, American discovery rules are possibly the most liberal in the world - it's a lot harder to compel the other party to produce evidence in almost any other country.

This was what was going on in the Piper Aircraft case. The plaintiff's definitely wanted the case tried under Pennsylvania or California law, not Scottish law. In Scotland, there was no such thing as a wrongful death claim as we know it in the States. The survivor could only recover for their own "loss of society/loss of consortium" - they could not, as they could under American law, recover for the decedent's medical expenses or pain and suffering or the loss of the decedent's future income.

The point is that you actually see quite a few foreign plaintiffs suing US defendants in US court for things that happened overseas. It happens a lot in products liability cases. You also see it in things like the suits against Union Carbide over the Bhopal disaster, or suits by Indonesian aborigines against Freeport McMoran.

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.

Besides that, US courts already decline to apply foreign law when doing so would be repugnant to the public policy of the forum state. That is a well-established exception to the general rules of judicial comity, and requires no special, hastily-written statutes.

One issue that has popped up in recent years is "libel tourism", where a foreign or sometimes even an American plaintiff will sue an American defendant for defamation in a foreign court under foreign law - usually in England - and then seek to enforce the judgment in American court. Obviously, they do this in order to get around the First Amendment and the NY Times v. Sullivan line of cases and to take advantage of Britain's increasingly plaintiff-friendly libel laws.

Congress unanimously passed a law last year addressing the issue, making foreign defamation judgments unenforceable in the U.S. if the claim would have been barred by the First Amendment had it been brought under U.S. law. Of course, even before that statute and similar recent state statutes were passed, courts were already declining to enforce such judgments on the grounds that they violated the forum state's public policy.

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)"?

Actually, come to think of it, I just thought of one. Lets say Joe the Software Engineer, a South Carolina citizen, does some independent contract work for a German company. His employment contract includes a choice of law clause providing that German law will apply, and a nondisclosure agreement.

Now, such an agreement is generally enforceable in the United States, but it does obviously restrain a constitutional right - freedom of speech. Under the South Carolina bill, would the German company be able to sue Joe in South Carolina court for breach of contract if Joe, say, divulged sensitive details of his work in his blog? I don't think it would be a totally unreasonable interpretation of the plain language of the bill to say that they couldn't, especially when you read section 2(C)(1) of the bill:

(C) Notwithstanding another provision of law, if any contractual provision or agreement:

(1) provides for the choice of a foreign law to govern its interpretation or the resolution of a dispute between the parties and the enforcement or interpretation of the contractual provision or agreement would result in a violation of the constitutional rights of a person, the contractual provision or agreement must be modified or amended to the extent necessary to preserve the constitutional rights of the parties.

Maybe I'm reading it all wrong, but can you see where that provision might be construed as rendering Joe's non-disclosure agreement unenforceable even though it would be perfectly enforceable if the contract chose South Carolina law?

Of course, it could mean that the term "violation" does not include rights voluntarily contracted away, but I don't know any way a contract could "violate" a right that doesn't involve some voluntary forbearance of that right by a party. And doesn't every 1L learn when reading Hamer v. Sidway one of the basic tests of consideration is the forbearance of some right, and do not all rights one could forbear in a contract in some way enjoy at least some Constitutional protection?

Perhaps I am engaging in reductio ad absurdum, but this bill seems to lend itself well to that.

"Perhaps I am engaging in reductio ad absurdum, but this bill seems to lend itself well to that. "

Does it lend itself well, or does it needlessly complicate the law, and make it less likely that foreign companies would want to contract with Joe in the first place?

Actually, it's an interesting question - and it's a question of law that I'm sure the legislators that crafted the bill didn't intend to inspire, right? Yes, clearly NDAs are fully enforceable in American law. But, would a German NDA be fully enforceable after the implementation of this law, because as you point out, the most narrow reading of that statute might be interpreted to be a "violation of the constitutional rights of a person" because of 1A considerations. It adds complication to the contract, where complication needn't be added, IMHO.

So what have we established? The statute "cures" a problem that was never a problem, but under certain circumstances, and with the right (or wrong) trial judge, at least one statutory provision could further complicate, and unnecessarily encumber legitimate contract agreements as an unintended consequence. Is that the right thing to be doing in a state with near double-digit unemployment already?

I thought Republicans were suppose to be the party that eased business regulations, not complicated them.

...The contract says that U.K. law governs.

1) They should sue in the UK.
2) You can put anything you want in a contract, the court will uphold those terms as long as they don't conflict with US law.

..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.

I think that you would have to file your suit in Canada where the damage/injury occured. If you did sue for damages in SC I would expect SC laws and procedures to apply. What if it's Mexico or Saudi Arabia? Should a SC court follow their procedures and laws if the incident happens there or if both parties in the suit are from there?

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.

It happens every day-- that's just a consequence of having trade and tourism across international boundaries.

Perhaps it could be brought in federal court through the state department, but most likely it would be brought in the Canadian jurisdiction where the offense occurred and service of process would be made through the US state dept.

The foreign plaintiff could sue the U.S. citizen in a foreign country, but the judgment would be useless if the U.S. citizen had no assets in the foreign country to collect from; the foreign plaintiff would then have to bring a second lawsuit in the U.S. to enforce the judgment from the foreign country. So, most likely, they would sue in the U.S.; the plaintiff can typically choose between federal or state court. No State Department involvement necessary.

Could be wrong but a really interesting what if.

There is a reason that every law school teaches a course on "conflicts of laws." I tried a case once in federal court in New York involving a shipping contract where we had parties from Switzerland, Norway, England, Venezuela, New York, Connecticut and Florida; some aspects of the case were governed by the law of England, other issues were governed by the laws of New York.

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