American courts using foreign law that incorporates religious law

[This week, I’m serializing my just-published article, Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L. Rev. 431 (2014); you can see the posts so far here. You can also read about the more general question of the use of foreign law -- religious or not -- in the American legal system in another article, Foreign Law in American Courts, 66 Okla. L. Rev. 219 (2014).]

While American courts cannot and should not decide what sharia calls for (as I argued in the preceding post), and thus cannot enforce contracts that call for the application of sharia, American courts rightly do consider the law of foreign countries that apply sharia. In doing so, courts don’t purport to decide what Islamic law actually requires, or risk taking sides in intradenominational debates (or other debates) within a religion (which would potentially endorse one or another religious view, or discriminate among religious observers). They simply try to identify what law would be applied by the courts of the foreign country, whether that country is Saudi Arabia, Israel or Greece.

A. Example: Family Law

Let’s begin with a common scenario: A family legally moves to America from Israel. American law will often ask the question: Are the father and mother married to each other? That’s relevant under immigration law.[35] It’s relevant under family law, for instance if one of them wants to marry someone else, claiming that they were never married. It’s relevant under other laws, such as a spouse’s legal right not to testify against the other spouse in court.

Now if the couple had married in America, a court could easily verify their marriage by determining whether they obtained the proper license and met the proper legal formalities. But they got married in Israel, long before they came to America. Unsurprisingly, their marriage therefore does not comply with the usual American formalities. (Neither would a Canadian marriage nor a German marriage.) How can we tell whether they are indeed married?

American law has long had a well-settled rule on these matters: A purported marriage is valid under American law so long as it is valid under the law of the country where the marriage was entered into.[36] There are of course exceptions for marriages that are considered contrary to public policy, such as polygamous marriages.[37] But setting those aside, a purported marriage entered into in Israel is valid for our purposes if it was valid under Israeli law.

Yet Israeli law provides that family law questions must be resolved under the law of the religious community to which the parties belong.[38] A Muslim couple’s marriage is thus evaluated to see if it complies with the formalities required by sharia. Thus, under normal American legal principles, deciding whether two people married in Israel are legally married for American purposes requires determining whether the sharia formalities were complied with in Israel. (Of course, this is even more clearly true as to marriages entered into in countries that generally incorporate sharia rules into their family law, such as Saudi Arabia, Iran and Pakistan.[39])

There’s no grand or controversial issue of multiculturalism involved here. It’s just our legal system’s normal accommodation to the longstanding reality that people come to America from all over the world. Our system provides the same accommodation to people from Britain, Poland, Israel and Saudi Arabia.

In some situations, this accommodation indirectly requires the application of sharia, but it provides no greater deference to sharia than it would to the application of any country’s law. And while our legal system rejects some aspects of sharia, such as the allowance of polygamy, it tolerates other aspects, such as the specification of what formalities are required to create a marriage. This is no different from how American law does not categorically reject Canadian opposite-sex marriages, even though Canadian same-sex marriages are not recognized under the law of most American states.[40]

B. Example: Tort Law

Now let’s turn to another scenario: An American tourist goes to Saudi Arabia on a trip and gets injured at the hotel where she’s staying. She returns to America and sues the hotel in American courts.[41] (Assume the hotel company does enough business in America that American courts have jurisdiction over it.)

In most states, the well-settled rule in such cases is to apply the tort law of the place in which the injury occurred. (Some states follow this as a pretty rigid rule,[42] while in others it is a usual outcome of the balancing of several factors.[43]) After all, we shouldn’t expect Guatemalan, Taiwanese or Saudi hotels to be subject to American rules as to injuries to their American tourists, German rules as to their German tourists, and so on. It makes more sense to accept that Saudi hotels’ actions are to be judged under Saudi law and subject to Saudi rules with respect to, say, punitive damages or reduction of liability owing to the patron’s negligence.

But in order to do that, American courts have to follow Saudi law, which is sharia. Naturally, they wouldn’t follow sharia procedural rules, especially ones that violate American public policy (such as the devaluing of the testimony of female witnesses).[44] But other sharia rules, for instance those related to the kind and magnitude of damages allowed,[45] should be applied, just as similar French or Greek rules[46] would be applied in other cases.[47]

There are other such examples, for instance involving contract law or the law of judgments.[48] But I think the family law and the tort law examples suffice to illustrate the point — to decide whether American courts should apply foreign law that incorporates sharia, we should simply follow traditional American choice-of-law principles that cover all foreign law.

* * *

[35]. See, e.g., Hassan v. Holder, 604 F.3d 915, 925 (6th Cir. 2010) (“Nabil was granted an F-24 Immigrant Visa as an unmarried child of a lawful permanent resident. Under [federal immigration regulations], Nabil (and Sawsan, derivatively) would be deportable … if Nabil and Sawsan were actually married when Nabil entered the United States. Accordingly, the government had the burden to show by clear and convincing evidence that the marriage between Petitioners occurred before their entry into the country. The validity of a marriage is determined by the law of the place of celebration. Pursuant to Israeli law, the sharia courts (and sharia law) control personal status matters of Muslims residing in Jerusalem.”) (citations omitted).

[36]. Restatement (Second) of Conflicts of Laws § 283(2) (1971).

[37]. Id. § 283(2) cmt. k.

[38]. See Hirschkorn v. Hait, 2008 WL 695892, at *7-8 (N.J. Super. Ct. App. Div. Mar. 17, 2008) (noting this and enforcing the order of an Israeli Rabbinical Court entered in an Israeli Jewish divorce).

[39]. See L. Ali Khan, The Qur’an and the Constitution, 85 Tul. L. Rev. 161, 168 (2010).

[40]. E.g., O’Darling v. O’Darling, 2008 OK 71, 188 P.3d 137.

[41]. See Rhodes v. ITT Sheraton Corp., 9 Mass. L. Rptr. 355 (Super. Ct. 1999).

[42]. See, e.g., Precision Gear Co. v. Cont’l Motors, Inc., No. 1110786, 2013 WL 3481949, at *3 (Ala. 2013).

[43]. See, e.g., Restatement (Second) of Conflicts of Laws § 145(2)(a) (1971).

[44]. See, e.g., Jamal J. Nasir, The Status of Women Under Islamic Law and Under Modern Islamic Legislation 61, 62, 178 (3d ed. 2009); Perry S. Smith, Silent Witness: Discrimination Against Women in the Pakistani Law of Evidence, 11 Tul. J. Int’l & Comp. L. 21, 44 (2003).

[45]. See, e.g., McGhee v. Arabian Am. Oil Co., 871 F.2d 1412, 1422 (9th Cir. 1989).

[46]. See, e.g., George A. Bermann & Etienne Picard, Introduction to French Law 261 (2008) (“French law formally rejects the notion of punitive damages.”); GreenEarth Cleaning, L.L.C. v. Collidoue Invest Fr., No. 09-0329-CV-W-GAF, 2009 WL 1766716, at *1 (W.D. Mo. June 23, 2009) (“[P]unitive damages are generally unrecoverable under French law … .”).

[47]. See also Bridas Corp. v. Unocal Corp., 16 S.W.3d 893 (Tex. App. 2000).

[48]. See Volokh, supra note 6, at 228-30 & nn.37-44; id. at 230-31 & nn.47-49.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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