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Monday, August 29, 2011

Anti-Shariah Law (Part II)

State Rep. Rashida Tlaib (D-Detroit)
The Law Blogger recently posted on the Anti-Shariah movement earlier this month.  Now, the Michigan legislature is getting in on the act along with the American Bar Association.

HB 4769, sponsored by Rep. Dave Agema of Grandville and numerous other legislators, seeks to restrict contracts and agreements calling for the application of foreign laws whenever such application would conflict with the rights set forth in the U. S. and Michigan Constitutions.  The bill was introduced last week and was assigned to the Judiciary Committee of the Michigan House of Representatives.

Judges presiding over disputes involving such contracts and agreements would be required to amend the application of the foreign law to protect the litigant's constitutional rights.  If an amended application of the choice of law provision is not feasible, then the foreign law provision is deemed null and void.

Under such a provision, you could kiss Shariah Law goodbye; at least if either party to an agreement calling for the application of the Islamic code wanted to escape the burden of the contract.  This scenario would come up most often in the family law context where prenuptial agreements between religiously devout Muslims frequently call for the application of Shariah Law in the divorce judgment.  If Agema's bill passes, the family court judge could not honor the prenuptial agreement.

This possibility has Michigan's Arabic community speaking out.  Michigan's only Muslim legislator, Rep. Rashida Tlaib (D. Detroit), called a press conference to denounce Agema's bill, stating that her constituents found it "very very offensive" to the extent the bill would cast suspicion on Muslims.

Transactional attorneys that negotiate contracts with international choice of forum clauses are concerned these provisions would be subject to litigation.  Until now, such contract clauses routinely have been  enforced by Michigan judges.

In the last few years, anti-foreign law bills have sprung up in 22 state legislatures but only Arizona managed to pass their bill into law in April.  In the 2010 elections, Oklahoma voters approved an anti-foreign law ballot measure, but the proposal was short-lived having been invalidated in federal court on First Amendment grounds.

The American Bar Association passed resolutions earlier this month denouncing any federal or state laws that impose blanket prohibitions against the use of foreign laws or religious codes.

In our free society where the First Amendment reigns supreme, just who's law is it anyway?  Go figure.

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