People of various faiths have been using extrajudicial forms of religious-based dispute resolution for centuries in the United States, including here in our home state of Georgia. Such tribunals include the Orthodox Jewish Beth Din tribunal[1] and the ecclesiastical courts of the Catholic Church.[2] Most commonly, these faith-based tribunals resolve matters of family law, such as divorce and property settlement disputes; however, some also engage in commercial arbitration and mediation.[3] Historically, Georgia courts have enforced these tribunals’ judgments either under prevailing arbitration laws or principles of comity, provided the awards and procedures are consistent with public policy. Georgia courts have also historically enforced foreign arbitral tribunal rulings in accordance with the same principles.

But a bill introduced this year in the Georgia General Assembly would have called all of these time-tested practices into question. The 2013-2014 Regular Session saw the introduction – and defeat – of House Bill 895 (“HB895”). HB895, officially titled “Laws and statutes; effect and enforcement of foreign laws; revise provisions,” was a thinly-veiled attempt at implementing anti-Sharia legislation in order to address a problem perceived by some political conservatives, namely that Sharia law is “creeping” into U.S. and Georgia courts.

The Georgia State Capitol

HB895 purported to respond to this problem by including broad language proscribing the incorporation of any “foreign” laws by Georgia courts. The Bill’s approach to achieving this, in short, was to amend two age-old provisions of Georgia law: the comity[4] provision and the forum non conveniens provision.[5] It should be noted that nowhere in HB895 itself are the words “Sharia law” included, since to enact a law for such a specific discriminatory purpose would be a flagrant violation of the First Amendment right to freedom of religion.[6] However, behind the scenes, the only real justification cited for the Bill was this problem of “creeping Sharia law.” The only evidence of that claim is a report prepared by the private Center for Security Policy (“CSP”),[7] which purports to provide hundreds of pages of evidence of Sharia law being applied to cases in American courts, but is in fact merely an amalgamation of copied-and-pasted court decisions that may – or may not, as the case may be – at some point in the opinion include the word “Islam,” “Muslim,” or “Sharia.”

So what’s the problem with trying to keep Sharia law out of Georgia law, anyway? The problem, simply put, is that Sharia law isn’t creeping in to Georgia law at all. To the contrary, our review of the CSP report revealed that most of the cases in the report have absolutely nothing to do with Sharia law at all. Those few cases that do discuss Sharia law, discuss it in the context of ruling it out as a possible application of the law for the foreign litigants in that court. No case cited is from Georgia.

Aside from the practical problems implicated by a total lack of evidence, the Bill also presents more complex, long-term problems for Georgia courts and Georgia commerce. To begin with, the effect of HB895 on courts would have been to restrict them in terms of applying public policy. The bill could also bar enforcement of rulings by the previously-mentioned religious tribunals. It ain’t broke, and to fix it would have unintended consequences. For example, it could adversely affect Georgia courts’ ability to enforce a divorce decree issued by, say, a court of the United Kingdom because UK legal procedure does not match that of Georgia. This could disrupt long-standing practices upon which many Georgians rely – or at least have taken for granted until now. Ultimately, such legal xenophobia would become a permanent deterrent for foreign businesses to choose Georgia as a forum for arbitration and other forms of dispute resolution, effectively undoing the Atlanta legal and ADR communities’ efforts to make the city an international hub for ADR.

Thankfully, HB895 was thrown out as of “Crossover Day,” Monday, March 3. A similar bill was introduced in the 2012 session, so it remains to be seen whether it will reappear in the next session.

__________________________________________________________________________________________

[1] See Beth Din of America, available at http://www.bethdin.org/

[2] See, e.g., The Roman Catholic Archdiocese of Atlanta, “Introduction to the Court and its Cases,” available at http://www.archatl.com/offices/tribunal/intro.html; Catholic Diocese of Arlington, “Outreach: The office For Canonical affairs and the Tribunal,” available at http://www.arlingtondiocese.org/tribunal/index.aspx.

[3] See Beth Din of America, “Arbitration and Mediation,” available at http://www.bethdin.org/arbitration-mediation.asp.

[4] See O.C.G.A. § 1-3-9 (generally recognizing the validity of other courts’ decisions, in the same vein as the deeply-embedded American legal concepts of reciprocity and full faith and credit).

[5] See O.C.G.A. § 9-10-31.1 (allowing a court to determine that a particular action “would be more properly heard in a forum outside this state” or elsewhere within this state).

[6] See Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) (holding Oklahoma Referendum 755, an explicit anti-Sharia law, was unconstitutional as a violation of the Establishment Clause of the First Amendment).

[7] Center for Security Policy, “Sharia Law and American State Courts: An Assessment of State Appellate Court Cases,” Version I.3 (May 20, 2011).