"The benefits of bans on the use of foreign law are likely to be small - but the costs could be grave," contends Eugene Volokh, who currently teaches at UCLA School of Law and was a former clerk for Justice Sandra Day O'Connor on the U. S. Supreme Court.
In the article "Why do American courts use foreign law in family law cases," Volokh says, "Foreign law is routinely used in American courts, but in everyday cases applying existing American law legal rules related to family law, contract law, tort law, evidence law, and the like." "Those American legal rules (such as "choice of law" rules) often expressly call for the consideration of foreign law."
An example is the 2008 Louisiana case, Ghassemi v. Ghassemi. The Ghassemis were first cousins born in Iran who married in Iran in 1976 and had a son born in Iran in 1977. The husband came to the United States to study, while the wife and son stayed behind. The husband remained in America and in 1995 his son joined him. The wife later came to America and in 2006 she petitioned for divorce from the husband. To rule on the divorce petition, Louisiana courts first had to determine whether the Ghassemis were validly married. In summary:
§ Louisiana bars marriage between first cousins so the Ghassemis could not have married in Louisiana. However, the universally espoused policy of favoring the validity of marriages if there is reasonable basis for doing so (favor matrimonii), authorizes the validation of marriages that are valid either in the state where contracted or in the state where the spouses were first domiciled as husband and wife.... This ancient policy of favor matrimonii and favor validitatis is well entrenched in the substantive law of every state of the United States.
§ The Louisiana court then looked at Iranian law to determine if the Ghassemis were validly married. The court concluded that first cousin marriages were valid under Iranian law, and therefore the Ghassemis were validly married for purposes of Louisiana law. The court did not refuse to follow Louisiana law by applying Iranian law. Rather, it applied Iranian law because Louisiana law so required.
§ Then, the Louisiana court looked to European law, Mexican law, and Canadian law and noted that marriages between first cousins are widely permitted. The U.S. is unique among western countries in restricting first cousin marriages (however, it is legal in 19 states and allowed with certain restrictions in 6 others). This is just the application of Louisiana law, rather than the replacement of Louisiana law with foreign law.
§ The Louisiana statute provides that foreign marriages are recognized "unless to do so would violate a strong public policy of the state." A "strong public policy" must be ... so 'odious' as to violate a strong public policy of this state." Looking at how such marriages are treated by sister states within the United States and by other Western countries confirms how "odious" our culture generally sees such marriages as being. The uniform recognition of such marriages in Europe, North American coupled with the recognition of such marriages in half the states, suggests that the marriages are not contrary to a "strong public policy" in Louisiana.
Volokh concludes, "I think it makes sense as to the definitions of which marriages are recognized: Whatever one might think of the merits of first cousin marriages, if those cousins have married - whether in Iran or Tennessee - it seems wrong to render them unmarried when they come to Louisiana, whether to live or to visit."
However, a growing number of states see differently and are targeting what they see as a threat to their court systems: the influence of international laws.
Seven states - Arizona, Kansas, Louisiana, Oklahoma, South Dakota, Tennessee and North Carolina - have enacted legislation barring judges from considering foreign law in their decisions and another 25 have introduced similar measures, according to the Pew Research Center's Religion and Public Life Project.
One exception to this trend is Missouri. In June 2013, Missouri Gov. Jay Nixon vetoed a foreign law bill, saying it would make international adoptions more difficult.
At Stange Law Firm, PC we keep abreast of the current events in family law locally and internationally. If you are facing a divorce or any issue pertaining to family law, Stange Law Firm is qualified to help.
Sources: Why do American courts use foreign law in family law cases? Eugene Volokh, The Washington Post
Pew Research Center's Religion and Public Life Project
Janet Loehrke and Kimberly Railey, USA TODAY