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Wednesday, March 07, 2012

Anti-Sharia Bills 2.0

As promised, here's a post about Florida's new bill that is aimed at prohibiting the use of "foreign law" in family law cases.  The bill recently passed the house and is part of the larger waive of anti foreign law/sharia law initiatives around the country.  Here's the key - and by now familiar - provision of the bill:

"Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is void and unenforceable if the court, arbitration, tribunal, or administrative agency 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 the same fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution."

I know, I've blogged about this on Prawfs before (here and here).  But this bill is different; I think the best way to describe it is Anti-Sharia Bill 2.0.  The bill is an update on Florida's previous attempt to introduce this anti sharia/foreign law bill with some changes I discuss after the break:

(1) Family Law: The bill now only applies to Chapters 61 (DISSOLUTION OF MARRIAGE; SUPPORT; TIME-SHARING) and Chapter 88 (UNIFORM INTERSTATE FAMILY SUPPORT ACT).

(2) Church Autonomy: It also now contains a carve out stating that it cannot be construed to "Require or authorize any court to adjudicate, or prohibit any religious organization from adjudicating ecclesiastical matters"

(3) Waiver: The bill also contains (I believe similar to the last version) a paragraph that states the new legislation would "not limit the right of a natural person in this state to voluntarily restrict or limit his or her fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution by contract or specific waiver consistent with constitutional principles. . . ."

To be candid, I don't really know how all these additional provisions would impact application of this bill (especially the waiver provision) - a sentiment both Eugene Volokh and I expressed in an article by Paul Berger at the Forward (there's some concern, especially on the part of the Anti-Defamation League, that this bill would also undermine the ability of rabbinical courts to resolve Jewish divorces).  

For anyone with thoughts as to how all this would shake out, the comments are open.

Posted by Michael Helfand on March 7, 2012 at 02:23 PM | Permalink


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I see this is a "move the goalposts" effort... since it does not define what constitutes a "fundamental right." For example, assume that the Florida Supreme Court interprets "marriage" as a fundamental right if, and only if, it is between a genotypically XY and genotypically XX individual (that is, "man and woman" without regard to sex change operations). Now bring in a married same-sex couple from Iowa with kids who move to Florida, and one of them dies. What result when the estranged grandparents sue for sole custody of the kids? Iowa law would qualify as "foreign" under the ordinary definition of "foreign law" used in choice-of-law ruminations...

In short, it's an ill-drafted mess that tries -- rather unsuccessfully, I might add -- to hide the target of its ire behind ill-defined "technical terms" that turn out to be coded themselves.

Posted by: C.E. Petit | Mar 8, 2012 12:47:03 PM

It's hard to understand the restriction of this to "foreign law" as anything but continued unreasonable animus towards the supposed Shari'ah "threat". Why are private arbitrary codes that do not grant fundamental liberties alright as long as they're not derived from foreign law?

Posted by: Andrew MacKie-Mason | Mar 7, 2012 9:10:34 PM

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