Since 2010 a majority of the US jurisdictions passed or tried to pass bills that to a different degree prohibit courts from applying sharia or more general foreign law if the latter has the effect to deprive the citizens of the state of the rights recognized under the US Constitution or the state constitution. The reasons behind these bills are discussed in Shariah in American Courts: The Expanding Incursion of Islamic Law in the U.S. Legal System (focusing, however, only on the alleged danger of sharia law)

The numbers are imposing: Between 2010 and 2013, lawmakers in at least 32 states presented bills to limit the possibilities for state courts to take into consideration foreign or religious laws in their judgments. A list (updated 2013) here: State Legislation Restricting Judicial Consideration of Foreign or Religious Law). From 2013 to 2015, other states passed, have tried to pass, or are still trying to pass foreign-law-bans: Florida, Mississippi, Georgia, Indiana, Ohio, Oregon, Pennsylvania, South Carolina, and Minnesota, among the others.

Currently, at least ten states – Alabama, Arizona, Florida, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, South Dakota and Tennessee – have succeeded in passing the foreign-law-ban into law. However, the 2010 Oklahoma statute, which banned judicial consideration of Islamic law (or sharia), was struck down by a federal court ruled that held that the law infringed upon Muslims’ constitutional rights. The statutes enacted in the other states have more neutral language than the Oklahoma statute and do not refer specifically to “sharia” or other religious laws; in fact only a minority of those bills cite sharia or other religious laws directly.

The text of many of the mentioned bills is based on a model legislation known as “American Laws for American Courts” (ALAC). According to the organization’s website, the model law is intended to ensure that Americans’ constitutional rights are not infringed by state courts’ consideration of foreign or religious laws, including sharia.

In brief the ALAC provides the following:

• The protection of a state’s citizens from the application of foreign laws which would violate rights guaranteed by the constitution of the state or of the United States (including but not limited to the right to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the state constitution) is public policy;
• It provides that freedom of contract may be limited pursuant to the state’s interest to protect rights and privileges granted under the US or State Constitution;
• The ban applies to law, legal code, or systems in force outside of the United States;
• All decisions violating the above described public policy of a State shall be void and unenforceable; in particular, if the court bases its decisions on any law that would not grant the parties affected by the decision the same fundamental rights granted under the U.S. and State Constitutions (including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of the state), that decision is void and unenforceable;
• The contractual provision which provides for the choice of a law that violates the public policy shall be void and unenforceable if it would not grant the parties’ fundamental rights;
• The contractual provision which provides for in personam jurisdiction over the parties to adjudicate disputes between them violates the public policy of the State if the chosen jurisdiction does not grant the parties’ fundamental rights and the clause shall be void and unenforceable ;
• A claim of forum non conveniens that would likely violate fundamental rights, must be denied because inconsistent with the above public policy.

ALAC (but not some of the state versions) does not apply to “corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States” and to churches and other religious entities for religious matters.

For more information, Francesca Giannoni-Crystal.