Capitol & State

Idaho’s foreign law ban: solution in search of problem?

The House State Affairs Committee finished up Thursday with Rep. Eric Redman’s “American and Idaho Laws for Idaho Courts” bill – better known by its Statehouse nickname, the “anti-Sharia law” bill – moving it to the House floor but recommending changes.

The bill aspires to protect Idaho citizens “from the application of foreign laws” in state courts that would violate their rights under state or federal law. Its working premise is that American law is under threat of infiltration by, or subjugation to, foreign law, especially Islamic religious law, or Sharia.

At Thursday’s concluding hearing on the bill, committee member Rep. Lynn Luker, R-Boise, recommended changes to clarify its impact on legal contracts, its effective date and scope of foreign law exclusions. The committee approved the motion to send the bill to the House amending order. If it gets through that process and passes the House, it’s not likely to get through the Senate, which weighs such matters more judiciously.

Redman, R-Athol, presented his bill to the committee Wednesday. The bill language is boilerplate from the model “American Laws for American Courts” statute promoted by the American Public Policy Alliance, an advocacy group that sees foreign law as a threat to American jurisprudence, but is principally concerned with Sharia. Tennessee, Louisiana, and Arizona are among states that have enacted laws based on the ALAC model.

Testimony Redman read Wednesday also came mostly verbatim from the group’s website. His other sources of information, as he told committee member Rep. John McCrostie, D-Garden City, came from Google searches. He couldn’t recall them off the top of his head, but given his testimony, one was the Center for Security Policy, an anti-Muslin think tank that the Southern Poverty Law Center classifies as a hate group.

I hope that legislators, regardless of ideological affiliation, recognize the costs of such proposals and make sure that they don’t replace one problem with another.

Eugene Volokh, law professor

The Public Policy Alliance pulls no punches in its assessment of Islamic law. Sharia, the group alleges on its website, “mandates violent Jihad as a religious obligation.Violent Jihad’s purpose against non-Muslims or former Muslims is to establish Islam’s rule worldwide.”

Despite that vitriol, its model ALAC legislation, and hence Redman’s bill, makes broad reference only to “foreign law.” The template would run into legal trouble if it explicitly singled out Sharia for exclusion. Courts threw out a 2010 voter-approved Oklahoma law for doing just that.

The fact is, American courts routinely, by necessity, rely on “foreign law” to adjudicate everything from contracts, wills, estates, and tort law, to judgments, marriage and divorce, and child custody. Here’s a simple example: An Idaho driver gets injured in a car accident in Canada with a Canadian driver who also happens to live in Idaho. Because both drivers live here, the American driver sues the Canadian driver in Idaho court, claming the Canadian driver violated traffic laws. Which traffic laws apply? Canada’s, of course.

Explicitly barring “foreign law” in Idaho could have unintended consequences, as noted in the legal opinion on the bill the state Attorney General prepared for Redman. Nothing in the bill on its face violates federal or state law, the AG’s office said, but the legislation “may present contract impairment issues.”

What kind of issues? Let’s take the case of an overseas company doing business in Idaho. What would happen if, under state law, company contracts orginating overseas, or judgments involving it, were unenforceable in Idaho? Under those circumstances, would any foreign firm do business here?

The AG’s opinion references legal writing on the subject by Eugene Volokh, a UCLA law professor and self-described conservative whose law blog “The Volokh Conspiracy” also appears in the Washington Post. The preceding examples come from him.

Writing in the Oklahoma University Law Review in 2014, Volokh said American courts “already may not do things that actually violate constitutional rights or conflict with other laws.” State laws based on the ALAC model, he said, are “likely to interfere with the perfectly proper consideration” of foreign law in “those narrow contexts in which American law has long dictated that foreign law be considered. I hope that legislators, regardless of ideological affiliation, recognize the costs of such proposals and make sure that they don’t replace one problem with another.”

In a follow-up article for the Law Review the same year, Volokh said complaints about “incidents of alleged ‘creeping Sharia’ in American law are misguided, partly because the complaints miss the way those incidents simply reflect well-settled (and sound) American law.”

Put another way, as Kathy Griesmyer from ACLU of Idaho said in her testimony Wednesday, Redman’s bill “is a solution in search of a problem.” The bill will be up for amendments Friday, and we’ll start to see whether lawmakers agree.

Note: This story has been updated to reflect action by the hearing committee Thursday.

Bill Dentzer: 208-377-6438, @IDSBillD