The Wall Street Journal‘s Law Blog recently ran a piece about the legitimacy of using of foreign law in American courts. The piece drew heavily from an article on the Volokh Conspiracy, but I want to talk about the concept, rather than the particular case (which Eugene Volokh also used for a concept discussion).
The particular case began with a man and woman who married in Pakistan. Later, still in Pakistan, the man divorced the woman in a religious ceremony, but neither followed through with a secular divorce. The woman then remarried while still in Pakistan, and after that, the new couple moved to the US, where they had another marriage ceremony. This marriage, though, also failed, and the two separated. The woman had never told her second husband about her first marriage, but in the course of his own divorce preparation investigation, he discovered that first marriage, the religious divorce, and the lack of a secular divorce. He filed for annulment, rather than divorce, arguing that the woman from whom he was seeking an end to marriage had committed bigamy. The woman filed for divorce, rather than annulment, insisting that the religious divorce was sufficient to have ended that first marriage.
A trial court, after consulting Pakistani law—which controlled both the secular and the religious marriage and divorce concerning that first marriage—granted the annulment, and a state appellate court affirmed. Volokh and the Law Blog both say that this use of foreign law in a domestic court was legitimate. I agree for the narrow kind of case this represents.
The acts in this case, which created the status of each person on which the other relied, were wholly completed within that foreign jurisdiction. Whether each person could rely on that status, then, needs to consider the law under which that status originated.
But this is a narrow situation. It cannot apply, for instance, where acts are completed in the US. This must rule out, for instance, the use of Sharia law to determine whether allegations of spousal abuse in a household in the US are accurate. This must rule out any legitimacy of any defense of the form “That’s the way we do it in the Old Country.” Actors in the US are not in the Old Country.
It must also rule out some areas where the actors in the US are acknowledged by all relevant parties to have broken the Old Country’s laws and then come here. This is what political asylum is for. A divorce vs annulment question has nothing to do with asylum. Breaking an Old Country law in defense of the inalienable rights—and associated individual freedoms—that we acknowledge as possessed by all human beings is an area where the foreign law must be held irrelevant.