Islamic Law in U.S. Courts: Anti-Sharīʿa Ban in Kansas

U.S. editor Abed Awad weighs in on the Kansas Superior Court’s discussion of mahr and Kansas’s anti-sharīʿa legislation in Soleimani v. Soleimani, 2012 WL 3729939 (Kansas Superior Court, 2012).

Soleimani v. Soleimani, 2012 WL 3729939 (Kansas Superior Court, 2012) involved a wife’s request to enforce the mahr contained in her Muslim marriage contract. While the trial level relied upon several grounds to refuse to enforce the wife’s contract, the trial judge said he was prohibited from considering sharīʿa because of the anti-sharīʿa legislation adopted in Kansas.

The Soleimanis entered into a Muslim marriage contract in Iran. The contract provided for mahr of gold coins worth in excess of $650,000. In setting up the argument that the anti-sharīʿa ban applied to this case, the trial court discussed Parikonda v. Pinjari, 2009 WL 930007 *3 (Mich. Ct. App. April 7, 2009). In Parikonda, the Michigan appellate court refused to recognize an Indian divorce because according to Islamic law the husband’s invocation of a triple talaq would result in a summary divorce by stating “I divorce thee,” three times.

Referring to Parikonda, the trial Court in Soleimani held:

Perpetuating such discrimination under the guise of judicial sensitivity to Establishment Clause prohibitions would, in effect, abdicate the judiciary’s overall constitutional role to protect such fundamental rights, a concern that presumably lead to the recently-enacted House Substitute for Senate Bill No. 79, 2012 KAN. SESS. LAWS, p. 1089, § 4.

The Court continued:

Thus, if a premarital agreement in the context of [Kansas Uniform Premarital Agreement Act], was the product of a legal system which is obnoxious to equal rights based on gender, a court could not become a proxy to perpetuating such discrimination.

I have written elsewhere about this fabricated “concern;” it is actually a fiction created to serve an insidious Islamphobic political agenda.[1]

Escaping the common sense of the trial judge was the fact that the Michigan appellate court did not recognize the Indian talaq on public policy grounds. Where is the concern? There was no anti-sharīʿa ban in Michigan at that time. Obviously, the courts are equipped with the legal tools to determine whether a foreign judgment or law violates American public policy. They do not need an anti-sharīʿa ban to do their job. The anti-sharīʿa ban actually restricts the ability of the courts to adjudicate disputes based on the evidence of a complete record.

The irony here is that the anti-sharīʿa ban prevented a Muslim woman from obtaining relief under her Muslim marriage contract. This is exactly the opposite result of the alleged “concern” to protect women.

The actual impact on the civil and constitutional rights of American citizens and legal residents is far more extensive than this Kansas case. The vast majority of court decisions are not reported. Most of them are unreported trial level cases. It will take many years before a few of these unreported trial levels cases reach the appellate courts. This does not take into account the litigants that accept unreasonable settlements because of the ‘defense’ of the anti-sharīʿa ban. In the next few years, we will start to see the problems and defects of the anti-sharīʿa legislation and start to see the undermining of the civil and constitutional rights of Americans and legal residents.

The logical conclusion of the anti-sharīʿa ban will result in prohibiting judges from considering Jewish law, Canon law and other religious laws. The problem is that American law permits courts to consider religious law to the extent it does not violate American public policy and as long as the court is not engaging in doctrinal interpretation. Religious law, culture and custom may also be considered by an American court not for purposes of applying religious law but rather as parole evidence to assist the court to better understand the expectations of the parties to a contract or the cultural/religious context to a dispute or to clarify an ambiguity or discover a fraud. In the end, the court applies American law. The anti-sharīʿa ban is preventing courts from gathering the relevant evidence needed to adjudicate disputes on the merits of a complete record.

I predict that the anti-sharīʿa bans will be found to be unconstitutional; and, even if such bans would withstand constitutional scrutiny, courts will create so many exceptions to the applicability of the ban that the exceptions would eventually swallow the rule. The sharīʿa bans do not provide Americans with any additional protections but the bans do violate the constitutional rights of Americans to practice their faith. More disturbing, with time the truth behind the anti-sharīʿa movement will slowly become crystal clear: misinformation, distortion and outright discrimination.

[1] See, e.g., Abed Awad, The True Story of Sharia in American Courts, Nation. and Abed Awad, Negative Connotations Surrounding Sharia Must Be Dispelled. Jurist.

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