Sen. Vicki Marble (R).
A new bill has been introduced late in the GOP-controlled Colorado Senate–Senate Bill 17-277, sponsored by Sen. Vicki Marble and Rep. Tim Leonard, “concerning the application of foreign laws in Colorado courts.”
The bill addresses the use of foreign laws, legal codes, or systems (foreign laws) by Colorado courts, arbitrations, tribunals, or administrative agencies (courts) in making decisions or rulings. Any court decision or ruling based on such foreign laws violates the public policy of Colorado and is void and unenforceable if the application of the foreign law does not grant the affected parties the same fundamental liberties, rights, and privileges granted under the constitutions of Colorado and the United States.
If the summary of the bill doesn’t clue you in as to its purpose, it’s an attempt to pre-empt the use of foreign laws by local courts–a problem that legal experts say doesn’t really exist, since American law already holds primacy over any foreign laws that might be applied in the United States regarding a contract or other dispute. Of course that might not hold true if Muslims were to, you know, take over America! And apparently that’s the fear, however unlikely and even laughable to most observers, driving this legislation.
And as it turns out, this bill isn’t even Sen. Marble’s and Rep. Leonard’s idea at all. SB17-277 appears to be composed almost entirely of stock language written by the right-wing American Public Policy Alliance. Here’s a sample from their stock language:
The [general assembly/legislature] finds that it shall be the public policy of this state to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the constitution of this state or of the United States, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.
The [general assembly/state legislature] fully recognizes the right to contract freely under the laws of this state, and also recognizes that this right may be reasonably and rationally circumscribed pursuant to the state’s interest to protect and promote rights and privileges granted under the United States or [State] Constitution…
And here’s the same stock language in Senate Bill 17-277:
The state of Colorado has a compelling state interest in protecting its citizens and lawful residents from the application of foreign laws that would result in the violation of any right guaranteed by the Colorado and United States constitutions, including the rights of due process, freedom of religion, speech, press, and the rights to privacy, property, and to bear arms in the defense of self or others;
Now, therefore, although the Colorado general assembly fully recognizes the right to contract freely under the laws of this state, it also recognizes that this right may be reasonably and rationally circumscribed pursuant to the state’s interest in protecting and promoting rights and privileges guaranteed under the constitutions of Colorado and the United States…
Apparently this bill has been shopped in a number of states, and has become law in Tennessee, Louisiana, Arizona, and Kansas. We haven’t found any reports of the law actually being used–but in Idaho, where the bill died last year, local analysis found lots of potential problems:
The fact is, American courts routinely, by necessity, rely on “foreign law” to adjudicate everything from contracts, wills, estates, and tort law, to judgments, marriage and divorce, and child custody. Here’s a simple example: An Idaho driver gets injured in a car accident in Canada with a Canadian driver who also happens to live in Idaho. Because both drivers live here, the American driver sues the Canadian driver in Idaho court, claming the Canadian driver violated traffic laws. Which traffic laws apply? Canada’s, of course.
Explicitly barring “foreign law” in Idaho could have unintended consequences, as noted in the legal opinion on the bill the state Attorney General prepared for Redman. Nothing in the bill on its face violates federal or state law, the AG’s office said, but the legislation “may present contract impairment issues.”
What kind of issues? Let’s take the case of an overseas company doing business in Idaho. What would happen if, under state law, company contracts originating overseas, or judgments involving it, were unenforceable in Idaho? Under those circumstances, would any foreign firm do business here?
As it turns out, the law is necessarily a lot more complex than the xenophobia of a few Republican lawmakers! The legislation says it is effective when foreign law would undermine “fundamental liberties, rights, and privileges granted under the constitutions of Colorado and the United States”–apparently without realizing our state and federal constitutions already protect us from that.
In short, this bill is unsalvageably stupid. Perhaps the only saving grace for the fringe lawmakers who introduced it is that they didn’t write it, because that would have required enough critical thinking to realize the legislation serves no purpose other than to disparage foreigners in general and Muslims in particular. Not explicitly, like the version of this law that passed in Oklahoma in 2010 specifically invoking Shariah law and was later thrown out by the courts–but every debate of this bill, wherever it’s introduced, turns into a free-ranging discussion on the nasty Old Testament-style particulars of Islamic law.
Don’t believe us? Come to the Colorado Senate Judiciary Committee hearing for SB17-277 on April 12th, and witness the sorry spectacle for yourself.