This morning the ACLU of North Dakota and the ND Catholic Conference teamed up to oppose HB 1425, a bill that's detrimental to religious freedom for people of all faiths. Below is ACLU-ND policy director Jen Cook's testimony in opposition to the bill.

Good morning Chairman Armstrong and members of the Senate Judiciary Committee.  My name is Jennifer Cook and I am the Policy Director for the American Civil Liberties Union of North Dakota.  The ACLU of North Dakota is a nonprofit, nonpartisan organization with more than 6,000 members, activists, and followers.  The ACLU of North Dakota is one of the state’s leading organizations dedicated to advancing and defending civil liberties and civil rights.

HB 1425, which purports to regulate North Dakota courts’ use and recognition of foreign law is unnecessary, raises significant constitutional concerns, and also has the potential to create significant unintended consequences in the everyday lives of North Dakotans who marry abroad, file for divorce, adopt children from overseas, or conduct other family matters that involve foreign or international law.  For all these reasons, we urge you to give HB 1425 a Do Not Pass recommendation.

HB 1425 is unnecessary and will have a significant impact on religious freedom.

Our federal and state laws afford people of all faiths the right to seek relief from the courts.  Courts routinely consider cases that touch on religion in various ways.  Our judicial system has long recognized the ability of courts to consider cases that touch on religion in some way if the court is able to evaluate and decide them using neutral principles of law.  For example, people of all faiths whether Jewish, Catholic, or Muslim seek relief from courts when their religious freedom is unnecessarily burdened.  Because religious freedom rights are at the heart of such cases, they necessarily involve some consideration of, or reference to, religion.  If courts undertake the examinations carefully, without becoming improperly entangled with religion, these cases do not present cause for concern.  The alternative would be people of all faiths would have no judicial recourse when the government violates their religious freedom rights.[1]

• Applying neutral principles of law when considering cases that involve religious freedom requires the court to look at a particular religion to determine whether there is a valid marriage according to that religion’s doctrinal requirements for marriage, and once the court determines a valid marriage exists, the court will then apply neutral principles of law, like contract or family law, to determine certain aspects of a divorce case (i.e. a prenuptial agreement can only be enforced using contract law if there was a valid marriage in the first place).
• An example of a common religious freedom claim courts routinely adjudicate can be found in the case Nelson v. Miller, 570 F.3d 868, 869 (7th Cir. 2009).  In Nelson, the court found that denying a non-meat diet during Lent and on Fridays substantially burdened the religious practice of a Roman Catholic prisoner. 

The First Amendment prohibits U.S. courts from imposing religious law as civil law.

HB 1425 will have serious unintended consequences.

Creating confusion and a legal nightmare for many North Dakota families: Courts routinely consider the law of foreign countries for a variety of reasons. It’s especially important in family law matters. Courts look to foreign law to determine the validity of marriages and adoption agreements conducted abroad. But under this bill, a court would be prohibited from recognizing a foreign marriage, an international adoption agreement, or a will executed abroad unless the court first determines that the pertinent country’s legal system provides the exact same rights and liberties as our laws with respect to the issue at hand.  That’s a problem because most countries have laws that differ from ours, even when it comes to fundamental liberties and rights, and it could leave many North Dakota families in an untenable position.

• Otherwise legal marriages would be invalidated:  A couple from North Dakota who is married abroad would be unable to have their marriage recognized at home unless they choose to be married in a country that provides the exact same procedural and substantive rights relating to marriage as our laws do.  Similarly, married couples who move to North Dakota from countries lacking the exact same legal protections (for example, Israel) might not be able to have their marriages recognized. 
• Otherwise legal international adoptions would be voided: A North Dakota family who adopts a child from a foreign country must obtain a foreign adoption decree in compliance with the law of that country.  But under HB 1425, a court would be prevented from recognizing a foreign adoption decree as valid if the pertinent country does not provide the exact same procedural and substantive rights relating to adoption as our laws do.  The measure would also raise significant legal difficulties for adoption agencies, both religious and secular, that facilitate international adoptions.

Weakening the right of religious arbitration: Many people of faith, including followers of Christianity and Judaism, agree to settle family or business disputes and other matters through religious arbitration panels, and courts have long been permitted to enforce these agreements provided that doing so would not violate public policy or cause the court to become too entangled in religion.[2]  However, because the religious systems of law used by these arbitration panels do not provide the exact same procedural and substantive rights as our civil laws do, such religious arbitration agreements could be deemed unenforceable by North Dakota courts, impairing the right of people of faith to settle disputes in accordance with the principles of their religion.

Prevents enforcement of judgments from other states:  A potential corollary effect of HB 1425 is that it may conflict with the duty of North Dakota courts to give full faith and credit to the judgments of sister states in cases where the judgments have considered foreign laws, international norms, or religious-legal traditions. The ABA noted that, “a state’s refusal to respect the judicial decisions of another state is a serious matter that may in many cases give rise to a constitutional violation.”  Under the Full Faith and Credit Clause of the Constitution, a state is obliged to recognize the judgments of a sister state so long as the latter has jurisdiction over the parties and the subject matter. The Supreme Court has made clear that there is no “roving ‘public policy exception’” to the full faith and credit due judgments.”  This exacting obligation ensures that states are “integral parts of a single nation,” and not simply an “aggregation of independent, sovereign [enti­ties].”

HB 1425 disrupts the roles of the branches of government and undermines the separation of powers.

As far back as Marbury v. Madison, it has been accepted that while the legislature has the power to write and enact laws, it is “emphatically the province and duty of the judicial department to say what the law is.”  Determining what sources of law to look at and how they should be applied are part of figuring out what the law is and thus also quintessential judicial acts.

By forbidding judges from looking at foreign and international law, through HB 1425 the ND legislature will effectively arrogate to themselves this power by enacting sweeping rules on how judges may or may not use foreign and international law in deciding cases.

When bills seeking to restrict judicial reliance on foreign law were intro­duced in Congress, Justice Scalia issued a stern rebuke to their proponents:  “It’s none of your business. … No one is more opposed to the use of foreign law than I am, but I’m darned if I think it’s up to Congress to direct the court how to make its decision.”

HB 1425 may have a discriminatory impact that will raise constitutional questions arising from the First Amendment and Equal Protection Clause.

The history of these bans shows that anti-foreign law measures or bills have been pushed in large part by organizations who openly advocate an agenda that singles out one faith particularly:  Islam. In states like Kansas, Tennessee, Louisiana, Florida, Montana and others where bans like these have been pushed, there is significant evidence on the record that the intended purpose for the introduction and passage of such laws is to single out the Muslim faith and deny religious freedom to those people who follow Islam despite the removal of specific language that singles out the Muslim faith from the bills or measures.

The discrimina­tory purpose of foreign law bans makes them susceptible to constitutional chal­lenge.  Denying Muslims the same religious freedoms afforded to people of all other faiths would be a complete betrayal of our country’s core commitment to religious liberty and equality.

These are just a few examples of the serious problems with HB 1425 and we urge you to give a Do Not Pass Recommendation to HB 1425.  Thank you for your time and attention this morning.  I will stand for questions. 

By Jamil Dakwar, Director, ACLU Human Rights Program

The United States has pulled its participation from hearings planned for today by a regional human rights body that has enjoyed the support of every U.S. administration since its founding.

The Inter-American Commission on Human Rights is meeting in Washington, D.C., for a regular session covering human rights issues spanning North and South America. The hearings today are scheduled to cover the Trump administration’s attempt to ban immigration from six predominantly Muslim countries, its immigration enforcement and detention policies, and its approval of the Dakota Access Pipeline. The ACLU is testifying on Tuesday at hearings that can be livestreamed here.

In the past, when U.S. governments have sought to express displeasure at having their records scrutinized, they have occasionally protested by sending lower-level officials. But today’s refusal to engage the commission at all is a deeply troubling indication of its disrespect for human rights norms and the institutions that oversee their protection.

The IACHR is an independent body of the Organization of American States, which brings together all 35 independent countries in the Americas. The U.S. has long been a champion of the work of the commission. While it has no enforcement mechanisms, its mandate is to promote human rights and examine violations in all OAS member states. The IACHR is often the only venue where victims of egregious human rights violations can seek a measure of recourse in the absence of accountability in their own countries. Survivors of the U.S. post-9/11 torture program have appealed to it, and even the Bush administration defended its policies before the IACHR.

The United States’ record isn’t the only one under scrutiny during this session. In the last several days, the commission has heard extensive testimony on the human rights situation in Mexico, Honduras, Panama, Chile, Bolivia, Guatemala, and Nicaragua, with additional countries to face review today and tomorrow.

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After word of the U.S. absence spread, the State Department responded by stating that “it is not appropriate for the United States to participate in these hearings while litigation on these matters is ongoing in U.S. courts,” in reference to lawsuits against the government’s Muslim ban. But that doesn’t explain why it wouldn’t attend another hearing regarding a Japanese-Peruvian man who was rounded up with thousands of other Latin Americans, deported to a World War II-era internment camp, and denied redress to this day. It also doesn't explain why the Bush and Obama administrations appeared before the commission for hearings on CIA torture, Guantánamo, immigration detention, and prison issues, even though there was pending litigation at the time.

The Trump administration’s refusal to engage with an independent human rights body, which has played a historic role in fighting impunity and barbaric military dictatorships in the region, sets a dangerous precedent that mirrors the behavior of authoritarian regimes and will only serve to embolden them. It is a worrying sign that the administration, which has also said it would review future engagement with the U.N. Human Rights Council, is not only launching an assault on human rights at home. Rather it’s upping the ante and weakening the institutions that hold abusive governments accountable.

Let’s hope the no-show is temporary, and not a sign of what’s to come.

This post has been updated to reflect the State Department's response. 

By Stephen Pevar, Senior Staff Attorney, ACLU

On December 4, the Army Corps of Engineers did the right thing by refusing to give Energy Transfer Partners permission to build a portion of the nearly 1,200-mile-long Dakota Access Pipeline under Lake Oahe in North Dakota. The corps’ decision to perform an environmental impact assessment and explore alternative routes for the pipeline fulfilled the U.S.'s treaty obligations with the Standing Rock Sioux Tribe, which vigorously protested the pipeline out of a credible fear that it could rupture and destroy its water supply, as well as acted in accordance with this nation's environmental protection laws. It was a big win for the tribe and its supporters.

But it didn’t last long.

Days after President Trump took office, he issued a memorandum and an executive order asking the corps to expedite its consideration of the company’s application for an easement to start construction. Soon after, the corps withdrew its call for the environmental study, and Energy Transfer Partners began drilling the next day. The reversal was a slap in the face of the tribe and its treaty rights with the United States. Quickly, the Standing Rock Sioux asked the courts to intervene and stop the pipeline so its impact on the environment could be assessed.

The courts are now the Standing Rock Sioux’s last hope to get the pipeline routed around its land.

That’s why this week the ACLU signed onto a friend-of-the-court brief with 34 Indian tribes and other organizations in support of a case filed by the Standing Rock Sioux Tribe in federal court against the Army Corps of Engineers. The tribe’s lawsuit seeks to halt further drilling and construction of the pipeline until the corps conducts a proper environmental impact statement consistent with federal statutes, such as the National Environmental Policy Act, as well as the federal government’s responsibility to protect the tribe’s rights and sovereignty under the 1868 Treaty of Fort Laramie. 

As outlined in our brief, the pipeline should be halted immediately consistent with the Standing Rock Sioux’s treaty rights as well as to prevent, for good, any chance a pipeline leak or rupture could despoil the tribe’s land and water. Energy Transfer Partners, however, claims that the chance of a rupture in the river is low, but there are three responses to that claim.

First, the chance of a rupture isn’t that low. In July 2015, the Michigan Petroleum Pipeline Task Force issued a comprehensive report of pipeline failures. The study found “hundreds” of pipeline ruptures “that have occurred throughout the U.S. pipeline system.”

The report cites many examples of ruptures over the last few years. In May 2015, a pipeline failed off the coast of Santa Barbara, California, releasing 105,000 gallons of oil into the Pacific Ocean. A few months earlier, another pipeline spill released 42,000 gallons of oil underneath the Yellowstone River. Two years earlier, a pipeline ruptured in Mayflower, Arkansas, releasing 134,000 gallons. In July 2010, a pipeline break released 840,000 gallons of oil, fouling 38 miles of the Kalamazoo River in Michigan.

Second, the possibility of a rupture — whether low or not — must be considered together with the consequences of a rupture.  Even a “moderate” release of oil into the Missouri River would have profound and devastating consequences, a subject that the company’s press releases ignore.

Lastly, it is fair to ask: Who would suffer the most by a rupture? The immediate victims of a rupture of the pipeline would be the members of the Standing Rock Sioux Tribe, now that the pipeline has been moved into their watershed. But the degradation of the water would also impact some 18 million people downstream who depend on water from the Missouri River.

Since 1974, it’s been the ACLU’s national policy to support Native Americans’ right to a tribal land base and its natural resources as well as support tribes who press their treaty rights with the U.S. government. Under treaties the Standing Rock Sioux made with the U.S. government as well as under federal statutes, the tribe has the right to protect its land, its heritage, and its water from contamination by a possible pipeline rupture. The treatment of the Standing Rock Sioux by Energy Transfer Partners and all levels of government compel us to help the tribe as they fight to stop the pipeline construction from proceeding so that a simple environmental impact assessment can be conducted.

The federal government has once again betrayed the Standing Rock Sioux and made a mockery of its obligations to the tribe while jeopardizing the drinking water of over 18 million Americans. We hope our brief helps convince the courts that a great injustice is taking place on federal land just north of the Standing Rock Sioux’s territory and that it should be stopped immediately.

Stephen L. Pevar’s book, “The Rights of Indians and Tribes” (Oxford 2012), is available here.