The Kansas state Senate passed SB 79, one of the many anti-Sharia and anti-foreign law bills either passed or being considered around the country. But this one is different from the law passed in Oklahoma and might well be legitimate, even if largely unnecessary. Here’s what the bill says:
Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.
This might be a valid way of approaching these issues, though it depends on how exactly it is to be interpreted. It is proper to forbid a court from enforcing any law, religious or foreign, that violates the rights of one of the parties. In fact, the courts already do that. There are instances where religious or foreign law is a proper thing for the courts to rule on, particularly in contracts and arbitration when the parties have agreed to do so in advance. But if enforcing those laws results in a violation of the rights of one of the parties — say, in a divorce case where the husband wants to apply Islamic law that does not provide the kind of due process or substantive protections for the wife — the courts generally refuse to enforce them (indeed, virtually every case that the Islamophobic nuts like Pam Geller cite as proof that American courts are “applying Sharia law” are, in fact, cases where they have refused to do so for exactly that reason). And that’s a good thing.
The one question I have is how broadly the language above would apply. Would it prohibit the application of foreign law in a business or religious arbitration case where the contract specifies that basis for mediation, only when that application violates the rights of one of the parties, or if there is any law in the larger system of law being applied that would violate someone’s rights? Since it does specify that this applies to the parties in the case at hand, I presume it would be interpreted narrowly. And I think that would make it legitimate, as opposed to the Oklahoma law that simply forbids all consideration of foreign or Sharia law in all cases.
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