Georgia Going the Way of Oklahoma and other States
Critics of legislation in the General Assembly that would prohibit the adoption and practice of foreign laws in state courts say it unfairly targets Muslims, could discourage international business in Georgia and violates federal arbitration laws.
House Bill 45, introduced by Rep. Mike Jacobs, R-Atlanta, states “it shall be the public policy of this state to protect its citizens from the application of foreign laws when the application … will result in the violation of a right guaranteed by the Constitution of this state or of the United States.” The bill also would prevent arbitrators or tribunals from enforcing a foreign law that didn’t meet constitutional standards.
Jacobs, a lawyer and vice chairman of the House Judiciary Committee, told the Fulton County Daily Report the bill would “ban the use of Sharia law in state courts.” He acknowledged that he was not aware of any instances in Georgia where a plaintiff or defendant asked the court to apply Sharia law but believes it has happened elsewhere.
“We’re seeing more of a feeling that Sharia law should be applied in domestic cases,” he said, such as divorces.
The chairman of the House Judiciary panel, Rep. Wendell Willard, R-Sandy Springs, has signed on as a sponsor but hedged when asked whether he supports the bill.
“I want to see what comes up in hearings,” Willard said, to answer this question: “Does it serve a real purpose or is that standard [that federal and state laws trump foreign laws] already recognized by courts in the state?”
M. Khurram Baig, a litigator with Kumar, Prabhu, Patel & Banerjee in Atlanta and a member of the Georgia Association of Muslim Lawyers, said the answer is no: “I don’t know of any instance where foreign law has prevailed in a Georgia court ever. So why is this necessary?”
“On its face,” he added, the bill “sounds fairly benign, fairly neutral. But given the political climate and timing, it’s fair to say it brings to bear the popular concerns that Sharia law will infiltrate America and is part of the Islamaphobia wave.”
Jacobs said he disagrees with the accusation of Islamaphobia.
“The bills speaks for itself on its merits,” he said.
Supporters and critics have mentioned a 2010 case in New Jersey in which a Moroccan man accused of domestic violence claimed a religious right to have nonconsenual sex his wife. But the state’s appeals court overturned the ruling of a superior court judge that the husband engaged in conduct constituting sexual assault but did not have the requisite criminal intent in doing so, finding that the man’s cultural and religious beliefs did not trump state statutes outlawing rape.
William E. Raftery, a research analyst for the National Center for State Courts, is tracking similar legislation being considered in about seven other states.
The first was in Oklahoma, where legislators called for a referendum in November 2010 banning Islamic law in state courtrooms. More than two-thirds of voters there passed the measure, but a federal judge issued an injunction a few days later blocking it, finding it posed a First Amendment infringement.
Raftery says Georgia’s bill appears to be like a “cut and paste” of the ones drafted in Tennessee, Louisiana and South Carolina.
“There are two different flavors. One is like Oklahoma’s, which specifically mentions Sharia law and calls for a constitutional amendment and bars recognizing the law of other states if they adopt Sharia law,” Raftery said. “The other is like Tennessee’s, which was the first state to propose a statutory change and didn’t mention Sharia. It just says ‘foreign laws.’”
Isam Salah, head of King & Spalding’s Middle East and Islamic Finance Practice Group, said he views the bill as a fearful reaction to the Islamic faith but maintains it won’t directly affect his practice.
“All investment and financing agreements we are drafting are U.S. law-governed documents,” he said. “Clients sometimes come to us and say, ‘Can this transaction be under Georgia law with the provision that it also be subject to Sharia law?’ And we say no.”
But Salah said he is concerned that HB 45 would advance the view among some Americans “that anything that is Islamic-related is evil. And people hearing about this [in predominantly Muslim countries] could be saying, ‘Maybe the U.S. is not the most hospitable place for our investments.’”
Salah noted that in New York, where he practices, legislators are considering tweaking tax laws to make them more acceptable to Sharia-compliant investments, namely Islamic bonds called sukuk.
Jacobs said he understands the concern but believes “Georgia courts ought to be in the business of making sure the law applied in Georgia courts meets minimal constitutional standards.”
Michael J. Broyde, academic director of Emory University’s law and religion program, said he thinks “the consequences of the bill have not been well thought out” partly because its restrictions on arbitrators and choice of venue would “incapacitate Georgia companies as they engage in international commerce.”
A bigger problem, he added, is that the bill “violates the Federal Arbitration Act and becomes an unconstitutional exercise of state authority.”
“Arbitration is a routine business exercise by people who are prepared to sacrifice some of their constitutional rights in return for reduced cost and expediency,” said Broyde, who also is an ordained rabbi and member of the Beth Din of America — the largest Jewish law court in the country.
Banning people from “willingly submitting to an ecclesiastical tribunal” is “inconsistent with traditional American practice.”
Jacobs said he’s hoping to resolve any perceived problems in Judiciary Committee meetings.
“I’m certainly willing to hear from practitioners who have concerns about specific applications of the bill as it is introduced.”
Original post: Georgia Going the Way of Oklahoma and other States