Legal Xenophobia In Arizona

From Eugene Volokh, I see an interesting and highly questionable piece of legislation pending in Arizona:

A. A court shall not use, implement, refer to or incorporate A tenet of any body of religious sectarian law into any decision, finding or opinion as controlling or influential authority.

B. A court shall not use, implement, refer to or incorporate any case law or statute from another country or a foreign body or jurisdiction that is outside of the United States and its territories in any decision, finding or opinion as either:

1. Controlling or influential authority.

2. Precedent or the foundation for any legal theory.

C. Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is null and void, is appealable error and is grounds for impeachment and removal from office.

D. This section applies to a federal court sitting in diversity jurisdiction.

E. This section does not apply to:

1. A statute or any case law developed in the United States and its territories that is based on Anglo-American legal tradition and principles on which the United States was founded.

2. A statute or any case law or legal principle that was inherited from Great Britain before the effective date of this article.

3. The recognition of a traditional marriage between a man and a woman as officiated by the clergy or a secular official of the matrimonial couple’s choice.

F. For the purposes of this section:

1. “Foreign Body” includes the United Nations and any agency thereunder, the European Union and any agency thereunder, an international judiciary, the International Monetary Fund, the Organization of Petroleum Exporting Countries, the World Bank and the Socialist International.

2. “Foreign Law” means any statute or body of case law developed in a country, jurisdiction or Foreign Body outside of the United States, whether or not the United States is a member of that body, unless properly ratified as a Treaty pursuant to the United States Constitution.

3. “Religious Sectarian Law” means any statute, tenet or body of law evolving within and binding a specific religious sect or tribe. Religious sectarian law includes Sharia Law, Canon Law, Halacha and Karma but does not include any law of the United States or the individual states based on Anglo American legal tradition and principles on which the United States was founded.

The sponsors of this legislation are, in my opinion, pointing their law at application of Sharia in judicial confirmation of arbitration agreements.  I’ve written about this issue before, as has Professor Volokh and his co-conspirator David Kopel.  The vast bulk of cases involving Sharia law enforced by U.S. courts deal with family law situations in which all the parties to the divorce are Muslim and all have agreed in advance to submit to Sharia law as a result of deep and heartfelt religious conviction. And of course, it is the mere fact that such people exist in the first place which motivates a bill such as this — a motive that I will shorthand as “bigotry.”  All of the rest of the cases found in this category involve international commercial disputes in which the parties have agreed to apply the law of a foreign nation in their contracts and the law of the nation thus selected incorporates Sharia.

The only other thing that I can imagine motivating a bill like this is a generalized fear based on a misunderstanding of the interest of certain jurists, most prominently Supreme Court Justice Anthony Kennedy, in looking to the laws of other nations for guidance when considering questions of U.S. law.  That fear is unfounded and I would challenge anyone who raises this as a serious concern to show me a case in which U.S. law was suborned to the law of some other nation absent either affirmation of that law through a treaty properly ratified by the Senate, or the effect of a choice-of-law clause in a private contract.  Neither of those situations can possibly represent an erosion of U.S. sovereignty because they all arise out of the voluntary choices made by private parties.

This leaves me wondering several things about this legislative proposal.

First, aren’t they using a sledgehammer to swat a fly?  How many arbitration agreements with Sharia choice-of-law provisions are Arizona courts being asked to affirm every year?  This can’t possibly be high on the list of problems pressing on the state of Arizona or even the civil justice system of Arizona’s judiciary.  I looked around and a bunch of academics looked around and we found a handful of cases involving Sharia law confirmed by various courts out of the tens of thousands of cases decided every year.  We’ve got to be talking about a minute amount of lawsuits here — and this law would have the tendency to increase, rather than decrease, the burden on trial courts because it would require a trial court to throw out a resolution of a dispute reached after private arbitration.

Second, and possibly fatally for the bill, doesn’t this restrict the free exercise of religion?  The single largest religious denomination in Arizona is Roman Catholicism.  A devout Catholic might consider principles of Catholic Canon Law to be important for any number of legal issues.  For instance, whether or not Catholic Charlie and Catholic Cathy get a civil divorce might depend on whether or not Canon Law will permit a religious annulment of their marriage.  While I personally think that Canon Law is a remarkably silly thing to consider when deciding how to plan one’s life, I also have to respect that others might feel differently and want to take this elaborate and well-developed  body of law and the ethical concepts incorporated in that body of law into account — and to bind themselves to it for a higher good. 

Third, there are lots of Native Americans in Arizona and they have lengthy legal traditions and court systems of their own.  Would an Arizona state court be bound to reject decisions based on those bodies of law, too?  The definition of “Foreign Law” is, at best, ambiguous in that respect.  Certainly Navajo law has nothing to do with the “Anglo American legal tradition and principles on which the United States was founded” (more about that in a few moments).  But a significant number of Arizona’s citizens have those laws as part of their own cultural traditions and there are special courts, chartered by the Federal government, that enforce provisions of those laws.

Fourth, what exactly is wrong with people privately agreeing on a set of rules to control their relationship and a court then enforcing those rules?  That is something I would call a “contract” and one would tend to think that the sort of legislator who is concerned about a state’s court only enforcing U.S. law would recognize that the ability of people to make their own contracts is a bedrock principle of U.S. law.  Indeed, it’s a good bet that these legislators were more than a little bit enthusiastic about the potential revival of the Privileges and Immunities Clause urged in the respondent’s brief in McDonald v. Chicago — the fundamental Privileges and Immunities freedom being the “freedom of contract” so roundly condemned by the Court’s rejection of Lochner v. New York in West Coast Hotel v. Parrish (1937) 300 U.S. 379.

Fifth, if the concern is not about Shaira specifically but foreign law generally, the concern is founded in the fear that the reliance on foreign law represents an erosion of U.S. sovereignty.  But failure to allow parties to engage in choice-of-law clauses does restrict their ability to make contracts and do business — and thus, potentially violates not only property rights but also treaties (like, say, NAFTA) that the U.S. has ratified.

Sixth, I really have got to look closely at what kinds of laws are and are not affected by this bill.  Section (E) of the bill contains three exceptions, each of which reveals something rather telling about the authors’ ideas about what are good laws and bad laws for Arizona courts to endorse through the act of affirming private arbitration agreements.

The “Anglo American legal tradition and principles on which the United States was founded” are exempted from the condemned, impeachable laws.  But “Canon law” is not.  So the law of the Catholic church, which was certainly considered heavily in heavily Catholic colonies like Maryland before the Revolution, is not a part of the “Anglo American legal tradition and principles on which the United States was founded.”  One wonders if Protestant takes on the legal procedures and principles set forth in the Bible are or are not within that body of “Anglo American legal tradition and principles on which the United States was founded.” 

Then, I see that “A statute or any case law or legal principle that was inherited from Great Britain before the effective date of this article” is also exempt.  Certainly we would want a court enforcing contracts to be able to consider, for instance, Hadley v Baxendale (1854) 9 Exch. 341, possibly the most important case in Anglo-American law about the issue of consequential damages.  (The influence of this case is also an example of why Justice Kennedy’s interest in foreign law as a guide is really nothing new at all.)  But Hadley is clearly not binding authority in any way and not a part of the legal legacy taken by U.S. courts from England — U.S. law branched definitively from British law at some point between 1775 and 1787 when the U.S. became a sovereign nation.  Since then, British common law has not been a part of our legal tradition here in the States.  Influential, persuasive, and interesting, but not binding here. 

Finally (as to this point), the author of the legislation is perfectly happy to allow a judge to recognize “a traditional marriage between a man and a woman as officiated by the clergy or a secular official of the matrimonial couple’s choice” even if that marriage was conducted under the authority of another body of laws. Well, that’s swell, but note that it is limited to “a traditional marriage.”  Like, say, mother-son incest, pawning off your maid on your husband to deal with his incessant demands for sex, or a man and his eight wives, just like the Bible said.

Seventh, judges in Arizona are selected in a manner similar to that of California — they are initially appointed by the Governor after going through a bar-and-bench screening process, and thereafter they must stand for election every four years.  If applying Sharia law (in the form of confirming an arbitration award) is really that unpopular, can’t the political process be left to its own to sort that out?  And if Arizona’s constitution and laws are anything like California’s or Federal law, then there is no specific definition anywhere of what constitutes an “impeachable offense” anyway; the exact definition of phrases like “high crimes and misdemeanors” are left by the judiciary to be political questions.  They are also apparently subject to recall, just like any other elected official.  So this law is hardly necessary if what the authors want to do is actually remove judges from office for this reason.  They could just go ahead and do it right now.

But of course, the authors of this law don’t actually want to remove any judges from office.  They want to engage in political theater.  And they also want to claim that they aren’t being bigots when they do it, so that’s why they have to dress it up in broad-sweeping, allegedly non-discriminatory language when they do it.  With the result that we have this complicated mishmash of restrictions on a judge’s conduct over a ridiculously tiny number of cases of importance to no one but the private parties, threatening to erode the concept of an independent judiciary buffered from political pressure, and which makes a mockery of the Constitution along the way.

If these guys can’t think of anything better to do with the time and money of the citizens of Arizona, I suggest that they recess and go home instead — before they do any more harm than this.