State Resources on the Prohibition of the Use of Foreign or Religious Law in State Courts

7/6/2017

Photo of scales of justiceEleven states—Alabama, Arizona, Arkansas, Louisiana, Kansas, Mississippi, North Carolina, Oklahoma, South Dakota, Tennessee and Washington—have enacted legislation regarding the application of foreign or religious law in state courts.  Eight states did so via the legislature, and Alabama enacted a measure in 2013 to change the constitution. That measure was approved by the voters in 2014.  Mississippi and Washington passed legislation in 2015 and Arkansas passed legislation in 2017.

Oklahoma’s original law was challenged in 2010, but Oklahoma enacted new legislation in 2013.  

Enacted Historical Legislation

Alabama

SB 4
Status: 5/21/2013 – Became law without governor’s signature.
Proposes an amendment to the Constitution to prohibit the application of foreign law in violation of rights guaranteed natural citizens by the United States and Alabama Constitutions, and the laws and public policy of the state, without application to business entities.

Oklahoma

HJR 1056
Status: 5/25/2010 – Adopted
Proposes an amendment to the Constitution to creates the Save Our State Amendment that requires the court of the state to uphold and adhere to the law as provided in federal and state constitutions, the United States Code, federal regulations, established common law, the state statutes and rules promulgated thereto, and if necessary the law of another state, in making decisions; provides the court shall not look at laws of another nation or culture.

Foreign Law Statutes

Alabama

Ala. Const. Art. I, §13.50 (also cited as Ala. Const. Amend. No. 884)
     (a) This amendment shall be known and may be cited as the American and Alabama Laws for Alabama Courts Amendment.
     (b) The law of Alabama provides:
(1) The State of Alabama has developed its unique public policy of laws based on the United States Constitution, as protected by Amendment 10 to the United States Constitution.
(2) Upon becoming a state in 1819, Alabama adopted its first constitutional and statutory enactments, upon which it has built the rights, privileges, obligations, and requirements of its government and citizens.
(3) Both the provisions of the Alabama Constitution and the statutes and regulations of the State of Alabama, with interpreting opinions by its courts of competent jurisdiction, have developed the state's public policy.
(4) The public policy of the State of Alabama protects the unique rights of its citizens beginning with Article I, Section 1 of the Constitution of Alabama of 1901, guaranteeing the equality and rights of men. Except as permitted by due process of law and the right of the people to vote for self-determination, the rights, privileges, and immunities of the citizens of the State of Alabama are inviolate.
(5) Different from the law of the State of Alabama is foreign law, which is any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.
(6) Alabama has a favorable business climate and has attracted many international businesses. While Alabama businesspersons and companies may decide to use foreign law in foreign courts, the public policy of Alabama is to prohibit anyone from requiring Alabama courts to apply and enforce foreign laws.
(7) The public policy of this state is to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the Alabama Constitution or of the United States Constitution, including, but not limited to, due process, freedom of religion, speech, assembly, or press, or any right of privacy or marriage.
(8) Article IV, Section 1, of the United States Constitution provides that full faith and credit shall be given by each state to the public acts, records, and judicial proceedings of other states. Provided, however, when any such public acts, records, and judicial proceedings of another state violate the public policy of the State of Alabama, the State of Alabama is not and shall not be required to give full faith and credit thereto.
    (c) A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.
    (d) If any contractual provision or agreement provides for the choice of a foreign law to govern its interpretation or the resolution of any dispute between the parties, and if the enforcement or interpretation of the contractual provision or agreement would result in a violation of a right guaranteed by the Constitution of this state or of the United States, the agreement or contractual provision shall be modified or amended to the extent necessary to preserve the constitutional rights of the parties.
   (e) If any contractual provision or agreement provides for the choice of venue or forum outside of the states or territories of the United States, and if the enforcement or interpretation of the contract or agreement applying that choice of venue or forum provision would result in a violation of any right guaranteed by the Constitution of this state or of the United States, that contractual provision or agreement shall be interpreted or construed to preserve the constitutional rights of the person against whom enforcement is sought. If a natural person subject to personal jurisdiction in this state seeks to maintain litigation, arbitration, an administrative proceeding, or a similarly binding proceeding in this state, and if a court of this state finds that granting a claim of forum non conveniens or a related claim violates or would likely lead to the violation of the constitutional rights of the nonclaimant in the foreign forum with respect to the matter in dispute, the claim shall be denied.
    (f) Any contractual provision or agreement incapable of being modified or amended in order to preserve the constitutional rights of the parties pursuant to the provisions of this amendment shall be null and void.
    (g) Nothing in this amendment shall be interpreted to limit the right of a natural person or entity of this state to voluntarily restrict or limit his, her, or its own constitutional rights by contract or specific waiver consistent with constitutional principles. However, the language of any such contract or other waiver shall be strictly construed in favor of preserving the constitutional rights of the natural person in this state. Further, no Alabama court shall be required by any contract or other obligation entered into by a person or entity to apply or enforce any foreign law.
    (h) Except as limited by subsection (g), without prejudice to any legal right, this amendment shall not apply to a corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.
    (i) Where the public acts, records, or judicial proceedings of another state violate the public policy of the State of Alabama, the State of Alabama shall not give full faith and credit thereto.

Arizona

Ariz. Rev. Stat. §12-3101, et seq.
A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States or conflict with the laws of the United States or of this state.

 
Arkansas

Act 980, 2017 Ark. Laws (HB1041)

1-1-103. Application of foreign law, legal code, or system.
     (a) As used in this section:
(1) "Court" means any court, tribunal board, administrative agency, or other adjudicative or enforcement authority of this state;
(2)(A) "Foreign law, legal code, or system" means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including without limitation international organizations and tribunals, applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals.
     (B) "Foreign law, legal code, or system" does not mean any laws of the Native American tribes in this state; and
(3) "Religious organization" means a church, seminary, synagogue, temple, mosque, religious order, religious corporation, association, or society with an identity that is distinctive in terms of common religious creed, beliefs, doctrines, practices, or rituals of any faith or denomination, including any organization qualifying as a church or religious organization under 26 U.S.C. § 501(c)(3) or 26 U.S.C. § 501(d).
     (b) A court ruling or decision violates the public policy of this state and is void and unenforceable if the court bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision one (1) or more of the following fundamental rights, liberties, and privileges granted under the Arkansas Constitution or the United States Constitution:
(1) The right to due process;
(2) The right to equal protection;
(3) Freedom of religion;
(4) Freedom of speech;
(5) Freedom of the press;
(6) The right to keep and bear arms;
(7) The right to privacy; or
(8) The right to marry, as "marriage" is defined by the Arkansas Constitution, to the extent that the definition of marriage does not conflict with federal law or a holding by the United States Supreme Court.
     (c) A contract or contractual provision, if severable, that provides for the choice of a foreign law, legal code, or system to govern some or all of the disputes between the parties adjudicated by a court of law or by an arbitration panel arising from the contract mutually agreed upon violates the public policy of Arkansas and is void and unenforceable if the foreign law, legal code, or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that does not grant the parties one (1) or more of the following fundamental rights, liberties and privileges granted under the Arkansas Constitution or the United States Constitution:
(1) The right to due process;
(2) The right to equal protection;
(3) Freedom of religion;
(4) Freedom of speech;
(5) Freedom of the press;
(6) The right to keep and bear arms;
(7) The right to privacy; or
(8) The right to marry, as "marriage" is defined by the Arkansas Constitution, to the extent that the definition of marriage does not conflict with federal law or a holding by the United States Supreme Court.
     (d)(1) A contract or contractual provision, if severable, that provides for a jurisdiction for purposes of granting the courts or arbitration panels personal jurisdiction over the parties to adjudicate any disputes between parties arising from the contract mutually agreed upon violates the public policy of Arkansas and is void and unenforceable if the jurisdiction chosen includes any foreign law, legal code, or system, as applied to the dispute at issue, that does not grant the parties one (1) or more of the following fundamental rights, liberties and privileges granted under the Arkansas Constitution or the United States Constitution:
     (A) The right to due process;
     (B) The right to equal protection;
     (C) Freedom of religion;
     (D) Freedom of speech;
     (E) Freedom of the press;
     (F) The right to keep and bear arms;
     (G) The right to privacy; or
     (H) The right to marry, as "marriage" is defined by the Arkansas Constitution, to the extent that the definition of marriage does not conflict with federal law or a holding by the United States Supreme Court.
(2) If a resident of Arkansas who is subject to personal jurisdiction in Arkansas seeks to maintain litigation, arbitration, agency, or similarly binding proceedings in this state and if the courts of this state find that granting a claim of forum non conveniens or a related claim violates or would likely violate the fundamental rights, liberties, and privileges granted under the Arkansas Constitution or the United States Constitution of the nonclaimant in the foreign forum with respect to the matter in dispute, then it is the public policy of Arkansas that the claim be denied.
     (e) Without prejudice to any legal right, this section does not apply to a corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to a foreign law, legal code, or system.
     (f)(1) A court or arbitrator shall not interpret this section to limit the right of any person to the free exercise of religion as guaranteed by Arkansas Constitution, Article 2, §§ 24-26, and the First Amendment of the United States Constitution.
(2) A court shall not interpret this section to require or authorize a court to adjudicate or prohibit any religious organization from adjudicating ecclesiastical matters, including without limitation the election, appointment, calling, discipline, dismissal, removal, or excommunication of a member, officer, official, priest, nun, monk, pastor, rabbi, imam, or member of the clergy of the religious organization, or the determination or interpretation of the doctrine of the religious organization if adjudication by a court would violate Arkansas Constitution, Article 2, §§ 24-26 or the First Amendment of the United States Constitution.
     (g) This section shall not be interpreted by any court to conflict with any federal treaty or other international agreement to which the United States is a party to the extent that the federal treaty or international agreement preempts or is superior to state law on the matter at issue.

 

Louisiana

La. Rev. Stat. §9:6001
     B.  The legislature finds that it shall be the public policy of this state to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the constitution of this state or of the United States, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.
     C.  A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.
     D.  If any contractual provision or agreement provides for the choice of a foreign law to govern its interpretation or the resolution of any dispute between the parties, and if the enforcement or interpretation of the contractual provision or agreement would result in a violation of a right guaranteed by the constitution of this state or of the United States, the agreement or contractual provision shall be modified or amended to the extent necessary to preserve the constitutional rights of the parties.
     E.  If any contractual provision or agreement provides for the choice of venue or forum outside of the states or territories of the United States, and if the enforcement or interpretation of the contract or agreement applying that choice of venue or forum provision would result in a violation of any right guaranteed by the constitution of this state or of the United States, that contractual provision or agreement shall be interpreted or construed to preserve the constitutional rights of the person against whom enforcement is sought.  Similarly, if a natural person subject to personal jurisdiction in this state seeks to maintain litigation, arbitration, agency, or similarly binding proceedings in this state, and if a court of this state finds that granting a claim of forum non conveniens or a related claim violates or would likely lead to the violation of the constitutional rights of the nonclaimant in the foreign forum with respect to the matter in dispute, the claim shall be denied.

Kansas

Kan. Stat. §60-5101, et seq.
[from Kan. Stat. §60-5103]
Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.

Mississippi

2015 HB 177
AN ACT TO ADDRESS THE APPLICATION OF FOREIGN LAWS IN JUDICIAL PROCEEDINGS IN THIS STATE; TO DEFINE TERMS; TO PROHIBIT THE USE AND ENFORCEMENT OF FOREIGN LAW UNDER CERTAIN CIRCUMSTANCES; TO PROVIDE FOR APPLICABILITY IN CERTAIN CIRCUMSTANCES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1.  (1)  In this section, "foreign law" means any law, rule, legal code or legal system other than the constitution, laws and ratified treaties of the United States and the territories of the United States, the constitution and laws of another state of the United States, Native American tribal law, the Mississippi Constitution of 1890, and the laws of this state.
(2)  A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed to a natural person by the United States Constitution or the Mississippi Constitution of 1890.

SECTION 2.  This act shall take effect and be in force from and after July 1, 2015.

North Carolina

N.C. Gen. Stat. §1-87.12, et seq.
[from N.C. Gen. Stat. §1-87.13]
In recognition that the United States Constitution and the Constitution of North Carolina constitute the supreme law of this State, the General Assembly hereby declares it to be the public policy of this State to protect its citizens from the application of foreign law that would result in the violation of a fundamental constitutional right of a natural person. The public policies expressed in this section shall apply only to actual or foreseeable violations of a fundamental constitutional right resulting from the application of the foreign law.

Oklahoma

Okla. Stat. tit. 12, §20, et seq.
Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on foreign law that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States and Oklahoma Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the Constitution of this state.

South Dakota

S.D. Cod. Laws §19-8-7
No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.

Tennessee

Tenn. Code §20-15-101, et seq.
It is the public policy of this state that the primary factor which a court, administrative agency, arbitrator, mediator or other entity or person acting under the authority of state law shall consider in granting comity to a decision rendered under any foreign law, legal code or system against a natural person in this state is whether the decision rendered either violated or would violate any right of the natural person in this state guaranteed by the Tennessee Constitution or the United States Constitution or any statute or decision under those constitutions.

Washington

Wash. Rev. Code §4.24.820
     (1) Washington's courts, administrative agencies, or any other Washington tribunal shall not recognize, base any ruling on, or enforce any order issued under foreign law, or by a foreign legal system, that is manifestly incompatible with public policy.
     (2) For purposes of this chapter, a foreign law, an order issued by a foreign legal system or foreign tribunal is presumed manifestly incompatible with public policy, when it does not, or would not, grant the parties all of the same rights, or when the enforcement of any order would result in a violation of any right, guaranteed by the Washington state and United States Constitutions.

Notable Court Decisions

Awad v. Ziriax, Case No. 10-6273 (10th Cir. Jan. 10, 2012).
Affirmed Oklahoma Federal Court’s decision to grant plaintiff Awad’s request for a preliminary injunction and enjoin the Oklahoma State Board of Elections from certifying the election results for Oklahoma’s State Question 755—which would forbid Oklahoma courts from considering or using international or Sharia law—until the Court can rule on the merit of the plaintiff’s claims.

Additional Resources