“American Law for American Courts” and Foreign Divorce Decrees

I blogged below about the “American Law for American Courts” proposal, and its possible effect on foreign judgments entered without a civil jury trial. Here, I wanted to flag a possible problem with this proposal and foreign divorce decrees.

American courts routinely have to decide the marital status of people who came to America from a foreign country, and who got married or divorced or remarried in that country. If Wanda purportedly married Xavier in Elbonia, then purportedly divorced him in Elbonia, and then purportedly married Harold in Elbonia, and ten years later comes to America, the American legal system has to be able to figure out whether Wanda is indeed properly married to Harold. That’s the sort of issue that comes up all the time in immigration law, in divorce law, in wills and trusts law, in tax law, in evidence law, and in many other contexts. To figure that out, it may be necessary to decide whether the earlier Elbonian divorce was valid — which can only be figured out using Elbonian law — or possibly just to give legal effect to the earlier Elbonian divorce.

Now what if the Elbonian legal system doesn’t take the same view of various rights, including equality rights, that we now take? What if, for instance, Elbonian law provides husbands more rights than wives in getting divorces started? Or what if Elbonia — like Israel, Lebanon, India, and other places — provides that family law matters are to be adjudicated under the religious laws of the religious group to which the parties belong, which necessarily involves a form of religious discrimination that would violate First Amendment principles if done in the U.S.? Or what if Elbonian rules of evidence give more weight to men’s testimony or to the testimony of people who belong to certain religions, and those rules had been applied in the divorce?

This might be bad, but it’s the reality under which Elbonian law operates, and Wanda has lived her life in Elbonia based on that reality. She may have remarried based on the effect of the divorce — however unfairly it may have been conducted. She may have gotten certain property in the divorce, perhaps less than she should have gotten, but something that she now views as hers. That’s life on the ground in Elbonia for her.

Now she and Harry come to America, and the question of the validity of her and Harry’s marriage comes up. Maybe Harry brings it up in trying to get his marriage to Wanda annulled (on the theory that the Wanda-Xavier divorce was invalid). Maybe the government brings it up in trying to decide whether Harry is entitled to claim the spousal privilege to refuse to testify against Wanda, or whether Wanda is entitled to certain state tax treatment offered to married people, or in one of many other situations where marital status is relevant. Even if we disapprove of the Elbonian legal system, it seems to me that American courts can’t just categorically ignore the Elbonian divorce.

Yet that seems to be what the “American Law for American Courts” proposal would do, when it provides that,

Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this State and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

Because the divorce decree was entered under a legal system that denied “the same fundamental liberties, rights, and privileges granted under the U.S. … Constitution[]” — such as equal rights regardless of sex, the First Amendment right not to be treated differently based on religion — the divorce decree is “void,” and thus presumably can’t be considered by American courts. Wanda would thus presumably be treated as still married to Xavier, and not to Harold.

That doesn’t seem to me to make such sense. It might be proper for courts to sometimes ignore the effect of foreign divorces that are based on procedures that American law views as improper — for instance, if they affect the rights of people who were U.S. residents at the time of the divorce, or to the extent they continue to affect child custody rights in some way that we see as improper. But it’s not right for courts to have to categorically ignore the effect of foreign divorces that involve departures from American equality norms.

Yet that seems to be what the “American Law for American Courts” proposal would call for. Perhaps this effect is inadvertent, and maybe courts can avoid it by some sort of creative construction, or liberal use of “putative spouse” doctrines under which (in some states) people can be viewed as married in some situations even if their marriage was technically invalid in some respect. But until that’s made clear, this seems to be a pretty serious potential problem with the proposal.