RICHMOND — A proposal to ban the use of foreign law in Virginia was on
its way to passing the House of Delegates, despite objections from
religious groups that it was a back-door attack on Islam that could
also harm followers of other faiths.
Then business interests expressed concern and legislators decided to
take a closer look.
For now, the measures have been sent back to the drawing board, but
supporters say they plan to try again next year.
House Bill 825, from Rep. Bob Marshall, R-Prince William County, would
have prohibited judges and state administrators from using any legal
code established outside the United States to make decisions. It was
one of two proposals this year to address that issue.
Muslim advocates condemned the effort, calling it a thinly veiled
attack on Shariah law, their religious tenets. Other members of the
religious community joined in, including the Jewish Community
Federation, saying the ban also would infringe on their rights,
especially to settle certain family matters, such as wills and
divorces, according to their faith.
Nonetheless, the House Courts of Justice Committee approved the bill
10-6 and sent it to the full House for consideration.
But when legislators started hearing from business groups concerned
about how the proposal could affect their dealings abroad and foreign
companies located here, they sent the bill back to committee.
"I had some business concerns," said Del. Terry Kilgore, R-Scott
County, after making the motion Thursday to kick back the bill. "It's
just something that needs more work."
A subcommittee voted Friday to carry the measure over to next year,
when the assembly will also take up a broader version, HB 631, from
freshman Del. Richard Morris, R-Isle of Wight County.
The Council for American-Islamic Relations attacked Morris' bill
first, pointing to language in it that was identical to a measure
drafted by anti-Shariah activist David Yeralshami. Although Marshall's
bill was more narrow, it seemed to have the same anti-Muslim
undertones, said the council and outside legal experts.
"This one is more cautiously drafted than a lot of these bills because
it doesn't mention Shariah law," said Douglas Laycock, a
constitutional law professor at the University of Virginia. "Although
everyone knows what it's about."
"I think the goal and the objectives are still the same, and that's to
stigmatize the Muslim community," said Gadeir Abbas, staff attorney
for the Council for American-Islamic Relations. "The business
community doesn't want it, the religious community doesn't want it and
it's not good for Virginia."
Marshall and Morris dispute that their bills target Muslims.
"All we're saying is that this legislature is absolutely going to be
in charge of how the courts incorporate foreign law," he said. "This
doesn't target any specific individual, religion or country's set of
laws."
In the past two years, 20 states have considered similar legislation.
Last month, the 10th U.S. Circuit Court of Appeals struck down
Oklahoma's version as discriminatory because it specifically mentioned
Shariah law.
Del. Greg Habeeb, R-Salem, said Marshall's proposal was different,
especially because it didn't mention any specific religion. Habeeb and
Marshall are both Christians.
"We could go down a really dangerous path with this type of
legislation, which is why we've spent hours and hours of analysis,"
Habeeb said during a hearing. "This is not the bogeyman bill. †It's
a statement of public policy."
Proponents of the legislation, such as the conservative Center for
Security Policy, argue it's intended to prevent foreign law from
infringing on Americans' rights, although their discussion focuses
only on Shariah law.
A study by the center reported finding 50 cases in 23 states during
the past two years where judges used Shariah law in their decisions.
Three were in Virginia: two marriage cases and one child custody
dispute, according to the report.
There's no widespread evidence of judges using foreign law in Virginia
or elsewhere, said Corey Saylor, national legislative director for the
Council for American-Islamic Relations.
"It's a nonissue," he said. "The Constitution is the law of the land,
and to my knowledge no one's questioning that."
Where the proposals would have applied is in family settlements, said
Morris' staff and religious leaders. For example, Jewish couples often
go to a rabbinical court to decide a divorce agreement and then ask a
domestic relations court to enforce it.
Marshall's bill would have banned that, as well as the use of Muslim
Shariah law or Catholic canon law, opponents said.
"It could have unintended consequences on legal practices in the
religious community throughout the commonwealth," said Charles
Swadley, interim president of the Virginia Interfaith Center for
Public Policy.
"We're afraid of it," added Richard Samet, an attorney who testified
against the bill on behalf of the Jewish Community Federation.
The chairman of the House Courts of Justice Committee, Del. Dave Albo,
R-Fairfax County, voted against the bill due to concerns it could
invalidate foreign adoptions, international letters of credit and
certain international contracts.
The proposals could have created a nightmare for Virginia's courts,
UVa's Laycock said. The American Civil Liberties Union of Virginia
agreed, saying the bills would have caused uncertainty for businesses,
litigants and people involved in family disputes.
"The idea that there can be no reliance on foreign law in a Virginia
court is utterly impractical," he said. "You cannot be a state with
commercial enterprises in a global economy and not deal with foreign
law."
Several subcommittee members said they weren't comfortable signing off
on Marshall's bill with so many legal questions unanswered.
"This is a very serious issue," said freshman Del. Peter Farrell,
R-Henrico County. "I don't want foreign law dominating me as an
American citizen. But the drafting does not seem to be correct and
we're being asked to rush this."
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