SB 29: Eek! Sharia! (Again)

Sen. Steele has introduced SB 29 concerning “application of foreign law.” I believe this is a return of the Sharia law bugaboo that crops up from time to time. (For example Sen. Kruse’s SB 90-2012).

If they’re just going to re-introduce the same bills, I guess I’m justified in just regurgitating the same analysis:

I believe Sen. Kruse’s SB 90 is properly understood as part of the non-existent Sharia menace.

Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution.

This part strikes me as gratuitous. What court in the U.S. is subordinating constitutional rights to foreign law? The whole scheme of statutory construction is premised on the notion that laws are unenforceable if they violate the constitution. So far as I know, foreign law is recognized as, at most, persuasive authority. That can change if, for example, parties have contracted to have their rights determined under a choice of law in a foreign jurisdiction, in which case the courts can be asked to determine the intent of the parties as to their rights under the contract by interpreting the law of a foreign jurisdiction.

The bill goes on to say that a foreign choice of law provision in a contract is void if it would violate someone’s constitutional rights. I think this is already a principle of contract interpretation, but it mostly does not come up because constitutions typically constitute the bounds of appropriate government behavior and not relations between private parties. So you can, for example, enter into a non-disclosure agreement without violating the First Amendment guarantee of free speech. On the other hand, a contract to enslave yourself is unenforceable.

I don’t know that this bill has any practical application. I think it’s properly understood as another chapter in the Great Sharia Freakout. See also.