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Friday, November 07, 2014

Amendment One, Alas

I'm grateful to Michael for his post on Amendment One, the Alabama anti-foreign/religious law amendment. As he notes, I wrote a couple of editorials that were published in a number of newspapers and other forums in the state, urging voters to reject this amendment. At best, in my view, the foreign/religious law piece of the amendment (there is also a full-faith-and-credit provision, one that appears to be aimed at the recognition of same-sex marriages, but I did not focus on that provision) simply repeats existing law, and so was quite unnecessary. Passing an unnecessary amendment was actually worse than unnecessary, however, because this governor and administration have been adamant about saying that they would focus on the economy, not symbolic or culture-war issues. To the extent that the new law requires even a small expenditure of money to achieve a redundant purpose, it runs contrary to their stated agenda and was the opposite of a conservative measure.

At worst--who knows? Every new law contains ambiguities. This law was not especially carefully drafted and certainly contains more than its share. And, as Michael points out, there is the chance--it has happened in at least one state with a somewhat similar law, and the same idea seems to be reflected in the case he discusses--that courts will take this narrowly worded amendment and interpret it expansively and dangerously. On its face, the amendment suggests that only a particular provision of, say, a contract, will be voided if it violates public policy. But a court might cite Amendment One as a basis to refuse to enforce a perfectly reasonable foreign or religious law provision on the basis of general concerns about the fitness of the foreign or religious legal regime. Since some such provisions--those requiring husbands to grant a get, for instance--are actually protective of the potentially disadvantaged party, this would give us bad results that wouldn't be required under current law.

There is very little good news about the passage of this amendment. But there are two glimmers of hope. The first is that the measure was loudly and clearly opposed by a variety of faith groups--predominantly black and predominantly white, evangelical and non-evangelical, and politically conservative and liberal. I was hoping that the opposition of the Christian Coalition, for example, would be enough to fracture the reflexively conservative vote in this state and kill the amendment. It was not to be. But it is a positive thing that these groups opposed the amendment. They understood full well that the intended target of the measure was Islamic law, and still opposed it.

In that sense, as I wrote in this paper, this is an important effect of decisions like Larson v. Valente, which erects a bar against sectarian preferences in laws burdening religion, and which was relied on by the Tenth Circuit in striking down the first-generation anti-sharia amendment in Oklahoma. A legislature that cannot aim its laws at a particular sect is faced with the choice to either drop the measure or to apply it to everyone, regardless of which sect they belong to. That creates political coalitions among the faithful, so that, say, the Christian majority is willing and eager to band together with the Muslim minority to oppose the generally applicable law. That's what happened in Alabama. Although it wasn't enough, it was still a pleasure to see. 

The other aspect of this episode that offers some small cause for optimism is that Amendment One was at least a second or third generation form of anti-sharia law. To avoid the problems of earlier generations of anti-sharia laws, such as Oklahoma's, it aimed at every religion and at all foreign law. And, precisely because it did so and its drafters understood that actually banning the enforcement of all foreign and religious law would be a terrible idea, the bill went one step further: It made itself basically redundant and toothless. The law does not forbid the application and enforcement of foreign or religious law altogether. It only bans their use when they would violate state or federal constitutional law. That means that, in most cases, an agreement that refers to Islamic (or Jewish, or Swedish) law can still be applied and enforced in Alabama today, just as it could before this unnecessary amendment was passed.

As both Michael and I recognize, the law might be enforced incorrectly and badly. If interpreted correctly, however, it will turn out to be so much excess verbiage. Amendment One is still stupid and dangerous, and its only apparent purpose was as a get-out-the-vote measure. But it may also demonstrate that the Constitution has worked with respect to anti-sharia laws, even if some version of those laws continues to be politically successful. In order to avoid having these laws struck down, the supporters of anti-sharia and anti-foreign law measures have had to turn them into mostly empty exercises. Thank God for that.    

Posted by Paul Horwitz on November 7, 2014 at 12:05 PM in Paul Horwitz | Permalink


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