Thoughts on the South Carolina "Foreign Law" Bill

It's been a while since my last post, so I was hoping to write something exciting about the South Carolina bill. Unfortunately, there are no major developments to report.

In the meantime, there are several issues with the Bill itself.

The South Carolina bill is redundant. It allows religious arbitration courts to function provided that they comply with US law. However, there are already oversight mechanisms in place to make sure that sharīʿa arbitration complies with federal and state law. Michael Helfand, a legal scholar, made a similar observation regarding the Oklahoma case.

Helfand elaborates:

Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: “Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get sharīʿa law into courts. There … have been some efforts, I believe, to explore bringing that to America, and it’s dangerous.”"

In reality, such arbitration is well established. For nearly half a century, Jewish, Christian and Muslim tribunals have operated in the United States in concert with government courts. These tribunals preside over matters of religious ritual and also apply religious law to a wide range of disputes between individuals and even commercial entities. Parties, in keeping with shared beliefs and values, can voluntarily agree to submit employment, divorce, contractual and various other types of disputes for resolution. State and federal courts currently treat such religious tribunals as they do all other arbitration panels that litigants can seek out as an alternative to going to court. And, as long as the tribunal and its decisions meet certain standards, government courts routinely “confirm” them — that is, render them legally enforceable.

The US legal system cannot operate in a vacuum and must be aware of norms in international law. As Garett Epps points out, ignoring "foreign law" is perilous and could interfere with U.S. obligations under international treaties.

The South Carolina Bill risks infringing on freedom of religion. Like the Oklahoma bill, it could interfere with marriages, inheritances, burials based on Islamic principles, etc.

These are prime examples of the problems that such bills could raise. Anyway, even if passed, the South Carolina bill is likely to be struck down like the Oklahoma bill.

For US legislators determined to restrict the sharīʿa, this type of approach seems ineffective.