The past two decades have witnessed the emergence of a new debate among legal scholars, namely, the propriety of citing international and foreign law in United States courts. The opposing viewpoints have been labeled "nationalist" and "transnationalist," arising largely from a series of cases in the U.S. Supreme Court that invoked international standards to aid in interpretations of the Constitution (accompanied by several denunciatory dissents from Justice Scalia). Generally speaking, nationalists advocate a complete disavowal of the use of international law as even persuasive authority in this country’s courts, while transnationalists embrace international law as an unavoidable component of a global society. Nationalists fear that any citation to international law "undermines self-governance by giving incentives to interest groups, domestic and foreign to frame international and foreign law with a view toward influencing our domestic law." Transnationalists counter that, like early cases from the U.S. Supreme Court, an examination of other countries’ approaches to novel issues, and the resulting consequences, provides practical insight into our own interpretation of similar issues.And for those who may be concerned about the Texas angle on this topic, the report may be reassuring:
In more recent years, Texas courts tend to address foreign and international law in only three principal situations: (1) when interpreting an international treaty at issue; (2) when responding to death penalty appeals that invoke international human rights law (here, only to a limited extent); and (3) when deciding the choice of forum and the appropriate law to apply. Representative cases in each category demonstrate the way that the courts are directed to invoke foreign and international law.
One reason I was interested is the concern we keeping hearing about Sharia law, such as the discussion in an Adam Liptak piece in the New York Times from 2008, and another very recent article in the Times, which has reported a lot on this topic. The first of these articles mentions a 2003 case in the 2nd (Fort Worth) Court of Appeals in Texas, in which the parties signed an arbitration agreement that said any dispute would be sent to arbitration at the Texas Islamic Court. The COA analyzed the agreement under Texas arbitration law and said the agreement was enforceable. In another case, from 2008, the 14th (Houston) COA looked at an Islamic marriage certificate that a husband and wife had signed. The court analyzed it under Texas family law to determine if it was a valid prenuptual agreement and concluded it was not (because it was signed after the couple was legally married). (My thanks to Heather Holmes, staff attorney to Justice Phil Johnson, for helping me find these cases.) Not surprising results, and not really an avalanche of Sharia law in our courts.
Addendum: Information on Sharia law bans from Gavel to Gavel, National Center for State Courts:
List and chart of 22 states with 49 active bills in 2011
General overview of 2010 efforts