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, such measures have been sent back to the drawing board, but supporters said they plan to try again next year.
One bill, HB825from Republican Del. Bob Marshall of 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. Members of other religious communities 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 some work.”
A subcommittee voted Friday to carry the measure over to next year, when the Assembly also will take up a broader version, HB631, from freshman Del. Rick Morris, R-Isle of Wight.
The Council on American-Islamic Relations attacked Morris’ bill first, pointing to language in it that was identical to a measure drafted by anti-Shariah activist David Yerushalmi. 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 that’s 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 on 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,” Marshall 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 is 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 in which 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 on American-Islamic Relations.
“It’s a non-issue,” 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. David Albo, R-Fairfax, voted against the bill because of 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, U.Va.'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 Friday they just 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, “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.”