Many Americans are, understandably, worried about trends that impose mushy notions of international law on our system of American constitutional law; and about worldwide trends toward Shari'a law being used in secular courtooms in various ways. There is legislation proposed in many U.S. states aimed at preventing this. This is a legitimate concern that goes all the way back to the American Revolution - the Declaration of Independence not only says that lawmakers across the ocean can no longer make laws that govern us, but also complains about Americans being taken out of state to stand trial. The problem is, from my perspective as a practitioner of family law in international cases, that there are some cases where foreign or religious law plays a legitimate role, and our legal system already has several decades of experience in working out rules about when and how that should happen. Legislation that arises from political fears is likely to disrupt that, and the damage will probably happen in cases that have nothing to do with politics, with consequences that no one proposing these laws has any idea about.
One such bill is Georgia's House Bill 242, the "American Laws for Georgia Courts Act." It says no court or government may enforce a foreign law, or defer to a foreign court, if doing so would violate a right guaranteed by the U.S. or state Constitution. Most astoundingly, considering that it's being proposed by people who care about liberty, the bill nullifies contracts in which people agree to be bound by foreign laws or courts, if the enforcement or application of the contract would result in a violation of constitutional rights.
The bill also has an interesting use of the term "foreign", from my perspective. In Virginia legalese it means "from Washington DC, North Carolina, etc.". Seriously. If you you mean only foreign-country-foreign you must take pains to emphasize that. I thought it meant the same in other states, but apparently not in Georgia.
There's a lot of carefully thought out language in the bill, but under the law of unintended consequences, which knows no international boundaries, all kinds of trouble will probably flow from it. I'm not sure what, but something no one wanted is bound to happen.
In applying the law of comity, the UCCJEA, UIFSA and the Hague Convention, there's already some tendency to avoid results that are repugnant to our ideas of human rights or constitutional rights, but this bill would make that a much more explicit, prominent part of international family law cases. Which will be a big change for family law, since in most family law cases, people don't have "rights" in the way which they're familiar with from other areas of the law. How constitutional rights mesh with the bread and butter of family law -- child custody, child support and alimony -- is generally murky. Dealing with constitutional issues in international family law cases may have major side effects on non-international cases, by making rules about constitutional rights which will then be applied in all family law cases. That's not necessarily altogether a bad thing, but it'll certainly be different.
