Analysis Of Constitutionality Of House Bill 695


Jun 4th, 2013
by Jeanette Doran

ANALYSIS OF CONSTITUTIONALITY OF HOUSE BILL 695

North Carolina Institute for Constitutional Law[1]

www.ncicl.org

June 3, 2013

Issue

Does North Carolina House Bill 695, which would prohibit the application of foreign law in certain circumstances explained below, violate the Equal Protection or Establishment Clauses of the Constitution because of its impact on one type of foreign law?

 

Brief Answer

Probably not.  House Bill 695 does not expressly target any one foreign law and thus is neutral on its face. However, opponents of the legislation could argue that the bill is unconstitutional by pointing to limited evidence of discriminatory legislative intent toward Sharia Law.

 

Facts

House Bill 695 declares the public policy of this State to protect its citizens from application of foreign law that would result in a violation of a fundamental right guaranteed under the United States Constitution or the North Carolina Constitution.  HB 695, §1-87.3.  The proposed bill explains that it applies only when there is an “actual or foreseeable violation[] of a fundamental constitutional right resulting from the application of the foreign law.”  Id.  Further, the bill only applies to proceedings under Chapters 50 and 50A of the General Statutes.   Id. § 1-87.10.  These chapters govern divorce, alimony, and child custody.  N.C.G.S. Ch. 50, 50A. This limitation was not originally included in the bill, HB 695, Ed. 1, but was added while in Judiciary Subcommittee C.  See North Carolina General Assembly, House Bill 695 (2013), http://ncleg.net/gascripts/BillLookUp/BillLookUp.

pl?Session=2013&BillID=h695.  Although a committee response to the North Carolina Bar Association said the bill would not affect the “vast majority of international business transactions,” Response to NCBA Critique p. 6, news reports suggest the change was added following concerns the proposed bill would have detrimental effects on international businesses.  Laura Leslie, Anti-Sharia Law Heads to House Floor, http://www.wral.com/anti-sharia-law-heads-to-house-floor-/12449096/. 

            The bill defines foreign law as “[a] law, rule, resolution, legal code, legal system, or any component of a legal system established and used or applied in a foreign venue or forum.”  HB 695, §1-87.2.  House Bill 695 makes no reference to any specific foreign law.  H.B. 695.  Further, no reference to Sharia Law as being the bill’s purpose was mentioned in floor debates.  N.C.G.A. House Audio Archives, 04-11-2013, 05-15-2013, 05-16-2013 (2013-2014), http://www.ncleg.net/gascripts/DocumentSites/browseDocSite.asp?nID

=9&sFolderName=/2013-2014%20Session/Audio%20Archives.  However, outside the House Chamber, there is evidence of a handful of Representatives discussing the bill and its application to Sharia Law, including statements comparing the threat of Sharia Law to Pearl Harbor and saying that Sharia Law is “fundamentally at odds with U.S. jurisprudence.”  Laura Leslie, Sharia Law Ban Heads to Senate, http://www.wral.com/sharia-law-ban-heads-to-senate-/12453749/.  In response to the North Carolina Bar Association’s concerns about the bill, a committee response described only Sharia Law as a “discordant foreign law,” and did so when discussing international treaties relating to child custody and child support.  Response to NCBA Critique p. 1-2.

            Sharia Law, the law of Islam, is very broad, covering nearly everything.  82 A.L.R. 6th 1.  Sharia Law covers family law, contracts, and torts, as well as diet and social etiquette.  Id. 

            North Carolina is not alone in considering limiting the application of foreign law.  Other states including Arizona, Louisiana, and Tennessee have enacted statutes similar to House Bill 695.  See A.R.S. § 12-3103; La. R.S. 9:6001; Tenn. Code Ann. § 12-15-101.  North Carolina’s proposed bill uses much of the same language as the Louisiana law, but differs by applying to only matters of family law.  See H.B. 695; La. R.S. 9:6001.  Additionally, Oklahoma voters approved a constitutional amendment limiting the application of international law, and specifically prohibiting the application of Sharia Law.  H.J.R. 1056, 2010 Leg., 52nd Sess. (Okla. 2010).  The Oklahoma constitutional amendment has since been held unconstitutional.  Awad v. Ziriax, 670 F.3d. 1111 (10th Cir. 2012).

 

Analysis

            Equal Protection Clause Analysis

The Equal Protection Clause of the Fourteenth Amendment does not forbid states from having laws that may disproportionately impact certain groups.  Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979).  However, if a facially neutral law has a disproportionate effect, then it is unconstitutional if the disproportionate impact can be traced to a discriminatory purpose.  Id. at 256, 272.  Discriminatory purpose implies that a legislature passed a bill “because of, not merely in spite of” effects on a particular group.  Id. at 279.

            House Bill 695 does not forbid Sharia Law outright.  For instance, if there were an aspect of Sharia Law governing child custody having no actual or foreseeable violations of fundamental constitutional rights, this bill would not be relevant.  House Bill 695 only prohibits application of foreign law if it violates a fundamental constitutional right.

            Therefore, House Bill 695 is facially neutral, but there remains the question of whether there is a discriminatory purpose behind the bill.  There is no evidence of this purpose from the floor debates.  But outside of Session, a few House members have discussed the threat of Sharia Law to the United States, and how this bill would solve that problem.  A response to the North Carolina Bar Association also raises concern by describing Sharia Law as a “discordant foreign law” and discussing it in the context of child custody and child support.

Searching for legislative intent has been described as “hazardous” because the motivation of some legislators may not be the motivation for all.  United States v. O’Brien, 391 U.S. 367, 383-384 (1968).  For this reason, there is rising disagreement about whether courts should even use legislative history to help determine the legislature’s purpose behind a statute.  Stephen Breyer, The 1991 Justice Lester W. Roth Lecture: On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992). 

The Supreme Court has declined to strike down “legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a ‘wiser’ speech about it.” O’Brien, 391 U.S. 367 at 384.  Ultimately, if a legislature passes a bill “because of, not merely in spite of” unfavorable effects on a particular group, then it is unconstitutional.  Pers. Adm’r of Mass v. Feeney, 442 U.S. 256, 279 (1979). All justifications, not just discriminatory purposes, should be considered by the courts.  Legitimate neutral justifications should be considered as well.  See Crawford v. Marion County Election Bd., 553 U.S. 181, 204 (2008) (plurality).  If the purpose for the statute is “neutral and sufficiently strong,” then the law is valid.  See id. 

 

First Amendment Analysis

If a law discriminates among religions, it may only be upheld if it is “closely fitted to the furtherance of any compelling interest asserted.”  Awad, 670 F.3d 1111, 1127 (quoting Larson v. Valente, 456 U.S. 228, 255 (1982)).  The Tenth Circuit struck down an Oklahoma constitutional amendment prohibiting Sharia Law because it treated Muslims unfavorably and there was no compelling State interest to do so.  Id. at 1123, 1130. Significantly, the Oklahoma law specifically mentioned Sharia law and so, unlike House Bill 695, was discriminatory on its face.

However, if a law is facially neutral like House Bill 695 is, the Lemon test determines whether it should be upheld.  “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).  To determine legislative purpose under Lemon, the Court looks at the statute itself and asks whether there is any evidence that would undermine the statute’s stated intent.  Id. at 613.  Next, the statute or government action cannot have the effect of endorsing or disapproving of a religion.  Lynch v. Donnelly, 465 U.S. 668, 691-92 (1984).  Then, courts ask whether excessive entanglement exists by looking to “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority.”  Lemon, 403 U.S. 602, 615.

In this case, House Bill 695 is facially neutral so the Lemon test applies.  The bill itself has stated the secular legislative purpose of protecting the constitutional rights of North Carolina citizens.  As with the Equal Protection analysis above, the issue is legislative intent.  There is no evidence from floor debates that the purpose behind the bill was to specifically prevent the application of Sharia Law, but a few members have discussed Sharia Law specifically showing intent to prohibit its application in North Carolina, and a committee response to the North Carolina Bar Association which mentioned “Muslim majority nations that would likely apply discordant Sharia Law.”  Under the second aspect of the Lemon test, a challenge to HB 695  would have to prove the effect of the bill was that the State was disapproving of Muslims, which cannot be examined until after the bill is enacted.  Finally, in this case there is no excessive entanglement because the bill provides no aid and does not establish a relationship between the State and a religious authority.

 

Conclusion

House Bill 695 is neutral on its face and would likely be upheld. Arguments could be made that the bill violates the Equal Protection Clause and/or the First Amendment of the Constitution because there is some evidence of discriminatory legislative intent. However, considering the Supreme Court’s approach to legislative intent in O’Brien and Crawford, noted above, the isolated comments of a few legislators are unlikely to trump the neutrality of the bill itself.



[1] For more information, please contact Jeanette Doran at 919-838-5313 or doran@ncicl.org