Report: Anti-Muslim State Level Foreign Law Bans Create Unintended Legal Consequences

A new report from the Center for American Progress and NYU’s Brennan School for Justice says that the anti-foreign law campaigns being waged in state legislatures throughout the United States are actually meant to target Muslims and may actually have an unintended effect of complicating legitimate legal disputes involving foreign countries and nationals.

“Although packaged as an effort to protect American values and democracy, the bans spring from a movement whose goal is the demonization of the Islamic faith,” write CAP’s Matt Duss and the Brennan Center’s Fazia Patel and Amos Toh. “Beyond that, however, many foreign law bans are so broadly phrased as to cast doubt on the validity of a whole host of personal and business arrangements.” The authors explain how the campaign originally began as an “anti-Sharia” movement and then evolved into a more focused push to ban foreign law:

On Election Day 2010 Oklahoma voters overwhelmingly approved the Save Our State referendum, a ballot initiative that banned the use of Sharia in the state’s courts. While the Oklahoma measure was immediately challenged in court, and ultimately struck down as unconstitutionally discriminatory toward American Muslims, its proponents launched a nationwide movement to recast anti-Sharia measures as bans on foreign and international law. This involved removing specific references to Islam in order to help the measures pass legal muster and successfully tapping into deep-rooted suspicions about the influence of foreign laws over the American legal system. While the intent of foreign law bans is clear, proponents of these bans hope that the foreign law veneer will save the measures from being invalidated on constitutional grounds.

The report maps out where the bans have been enacted and are being considered:

The report recommends that these states considering foreign law bans should reject them and those that have passed foreign law bans should repeal them. “The bans set out to cure an illusory problem but could create a myriad of unintended real ones,” the report says, adding that they “send a message that a state is unreceptive to foreign businesses and minority groups, particularly Muslims” and “sow confusion about a variety of personal and business arrangements.”

“The issues raised by foreign law bans,” the author note, “may lead to decades of litigation as state courts examine their consequences and struggle to interpret them in ways that avoid constitutional concerns and discrimination against all minority faiths.”