The Kansas legislature is in the process of enacting Bill 2087 that prohibits courts, arbitrators, and agency officials from relying in their decisions and rulings on any foreign law, legal code, or system that does not protect "the same fundamental rights, liberties, rights, and privileges granted under the United States and Kansas constitutions." The bill, led by Republican conservatives in both chambers of the Kansas legislature, will become law as soon as Governor Sam Brownback signs it.
Unfortunately, the bill shows disrespect for the state judiciary, erects unnecessary barriers against international investments, and condemns the religion of Islam inflicting distress on Muslim citizens of Kansas. The day this bill becomes law will be a dubious day in an otherwise morally upright history of Kansas -- a free state that repudiated slavery, a state whose citizens take religion seriously, a state whose colleges and universities educate foreign students, and a state whose farmers work honestly and arduously to feed families in Kansas, the United States, and the world.
Disrespect for State Judiciary
Bill 2087 is cast in an overly broad language. It does not mention Islamic law or Sharia. Instead, the bill employs broad phrases such as "foreign law," "legal code," or "system." Nor does the bill mention Egypt, Pakistan, Saudi Arabia, or any other Muslim country to associate these phrases with Islam. The bill deliberately avoids specific references to Islam and Sharia because the Tenth Circuit, the federal appellate court that has jurisdiction over Kansas, has scrubbed the Oklahoma State constitutional amendment that banned the use of the Sharia in Oklahoma state courts. The Kansas legislature knew that openly anti-Islamic provisions, similar to the ones adopted in Oklahoma, would not stand in federal courts. The bill is therefore clothed in broader and somewhat sweeping language. Yet, the driving force behind the bill is the irrational fear of Islam that does not protect "the same rights, liberties, and freedoms" as do federal and state constitutions. Many conservative Republican lawmakers openly express negative views about Islam and the accompanied misunderstandings of the Sharia.
From legal and constitutional viewpoints, Bill 2087 will be a useless law that adds nothing but embarrassment to the Kansas legal system. As far as state courts and state agencies are concerned, they, in enforcing contracts, are already bound to protect rights, liberties, and privileges granted under the state and federal constitutions. Therefore, reaffirming these rights and liberties as a "state policy" is a jurisprudential overkill. No new statute is needed to remind courts and agencies of their systemic obligation to enforce the federal and state constitutions in their decisions and rulings. Worse, Bill 2087 embodies unjustified legislative disrespect for state judges, trained in law and jurisprudence, who know very well that they are bound by the constitutions in enforcing any legal relationship, including international transactions. A state system does not benefit when its legislature fights quixotic windmills to reform state jurisprudence.
Harm to State Businesses
Even though Bill 2087 adds nothing useful to Kansas jurisprudence, it carries the potential of driving away international businesses from the state. Under common law, parties are free to choose a body of law that would govern the resolution of disputes arising under the contract. Traditionally, state courts do not enforce choice of law clauses found contrary to state laws or policies. Bill 2087 compels state courts not to enforce contracts if the parties have chosen a "suspect foreign law" to govern the contract, one that does not protect rights and liberties granted under the federal and state constitutions. The courts must now determine the liberty quality of an entire foreign legal system before they can enforce a choice of foreign law clause. This legal barrier is likely to discourage foreign companies from doing business in a state that restricts their freedom to choose the best law that must govern the contact. Worse, Kansas businesses might be forced to accept the resolution of contract disputes in foreign jurisdictions under foreign laws, which may or may not benefit Kansas businesses.
Bill 2087 is highly problematic since it compels even arbitrators (in addition to state judges and agencies) not to enforce the choice of "suspect foreign law" clauses in contracts. When parties choose arbitration rather than litigation to resolve disputes, they enjoy internationally recognized freedoms under rules of arbitration to choose not only the governing law but also the country, location within the country, and the language in which arbitration proceedings would be conducted. Since Bill 2087 restricts the freedom of the parties to choose foreign law, the parties would simply move the locale of arbitration outside Kansas.
It is most surprising that Kansas Republicans who favor capitalism, free markets, individual liberties, and eagerly condemn regulation of businesses will abandon their party ideology; and, motivated by misunderstandings of Islam, will enact a law that imprudently restricts the freedom of contract. The small economy of Kansas needs international investments to develop and diversify. It does not need questionable legal barriers. Ideally, the Kansas legislature would make laws that expand the Kansas economy, attract international businesses rather than shoo them away.
Harm to Muslim Citizens
By passing the bill and making impudent statements against Islamic law, the Kansas legislature has disappointed Muslims citizens of Kansas, who gratefully serve the state contributing to its welfare and economy. Muslim physicians from Pakistan, Jordan, Syria, Iran, Egypt, and other Muslim countries are providing critical medical services in many specialty areas, including cardiology, oncology, pulmonology, and pediatrics. Some Muslim physicians work for the VA hospitals providing medical care for the sick and disabled soldiers. Numerous Muslim engineers from Yemen, Tunisia, Bangladesh, and other Muslim countries work for state agencies. Muslims own and run numerous gas stations and food franchises in Topeka and Wichita.
Furthermore, hundreds of Muslim students from the Gulf States come to Kansas colleges and universities for higher education. The Kansas University Law School attracts many Muslim students for its JD, LLM and JSD programs and has an active relationship with law schools in Turkey, a Muslim country. I (as one of the first Muslim law professors hired in the United States) have been teaching at Washburn University Law School for nearly 30 years, and note with satisfaction that Washburn law graduates proudly serve the state of Kansas as lawyers and judges.
Muslim citizens of Kansas and Muslim students studying in Kansas colleges and universities are disheartened that the Kansas legislature is passing a law to condemn their religion and the associated Sharia. They all know what the Sharia means to Muslims: it means saying the daily five prayers according to the prescribed law; it means fasting in the month of Ramadan according to the prescribed law; it means giving charity to the needy and the poor; it means taking care of young children and old parents; it means working honestly and diligently. The Sharia caricatures on which the legislature has relied to pass the bill will tell a sad story to Kansas children, Muslim and non-Muslim.