Idaho State Rep. Eric Redman (R-Athol) hopes the second time is the charm.
He has introduced this year House Bill 94. It is a follow-up to a similar measure he introduced last year designed to limit the applicability of foreign law in Idaho.
Rep. Redman was quoted in an Associated Press story as stating “[s]tate legislators have a role to play in protecting constitutional rights and American values of liberty and freedom.” He has opined that Sharia law, which is a form of Islamic religious law, is a particular threat.
The key provision in the Redman bill states:
USE OF FOREIGN LAWS -- ENFORCEABILITY. Any court ruling or decision that violates the public policy of this state shall be void and unenforceable to the extent that the court bases its ruling or decision in the matter at issue in whole or in part on any foreign law that would not grant the parties affected by the ruling or decision similar fundamental liberties, rights and privileges guaranteed under the constitution of the United States and the constitution of the state of Idaho including, but not limited to, due process, freedom of religion, speech or press, and any right of privacy or marriage embodied in the constitution of the state of Idaho.
One of the more vigorous opponents of such legislation is conservative UCLA law professor Eugene Volokh. He clerked for former Supreme Court Justice Sandra Day O’Connor and is known as a right-leaning advocate on issues of free speech, the Second Amendment and religious freedom.
I reached out to Professor Volokh and asked his thought on this specific bill. Here is his response:
The bill would cause at least two serious problems: First, it would make judgments from almost all Western democracies, including major trading partners (Canada, England, France, Germany) unenforceable, because those countries don’t use civil jury trials. (The right to trial by jury in civil cases is a “fundamental right,” and would thus be covered by the bill. See, e.g., Farmer v. Loofbourrow, 75 Idaho 88, 94 (1954)).
Second, it would require Idaho courts to ignore foreign divorce judgments from countries that use sex-discriminatory or religion-discriminatory rules, even when those divorce judgments involved citizens of those countries, and were gotten decades before those citizens moved to Idaho. That means that, for instance, an immigrant’s Idaho marriage to an Idaho citizen might be invalidated because her earlier divorce in her country of birth has to be ignored under the proposal.
His point about divorce law is thought-provoking. Imagine existing Idaho marriages being undermined by a refusal to recognize foreign divorces decrees.
It is competitively dangerous for Idaho to declare decisions rendered in the other Western democracies as void. I can imagine an Idaho company contracting with a Canadian entity to ship potatoes from Shelley, Idaho, to British Columbia. The Canadian buyer might require disputes to be interpreted pursuant to Canadian law in a Canadian court. The Redman bill would render that provision unenforceable, creating a considerable disincentive for Canadian businesses (and other foreign businesses) to do business in Idaho, resulting in job loss and constrained business profitability.
Volokh thinks the actual risk of dangerous foreign law infiltrating Idaho courts is overblown, noting that the bill “would be done to solve a theoretical problem that rarely arises: courts already do a good job of recognizing which foreign judgments are against American public policy and thus shouldn’t be enforced.”