The Irony of Sharī’a Bans: Part I

By Haider Ala Hamoudi

The most common criticism of legislative attempts to ban the “creeping” of sharī’a into United States Courts is that they serve no actual purpose.  That is, courts do not decide cases on the basis of sharī’a, and therefore banning it does not serve any legitimate purpose, nor could it have any real effect on how cases are decided.

In fact, I posit, on the basis of the very limited information available to date, that the bans do have an effect on the manner in which courts decide cases.  Specifically, as concerns the separation of religious doctrine from state law, the bans have the rather paradoxical effect of tearing down the wall of separation they are supposed to be upholding. Far from preventing entanglement of state and religion, these sorts of bans seem to be facilitating that very process by involving state courts in Islamic law interpretations, in a manner that is potentially quite dangerous.

I intend to demonstrate this thesis in a series of posts in the specific context of litigation concerning the mahr, which is the nuptial payment a husband is obligated to provide a wife upon concluding a marriage.  In the next post, I will show that there is no justifiable “creep” as concerns the application or enforceability of mahr agreements at all, based on the case law built up over the course of the previous few decades, long before sharī’a bans were ever considered. This is because, historically, to the extent that courts enforce the mahr at all, it is precisely because they do not need to consider Islamic law when doing so.  Rather, they seek to enforce it on the basis of what the United States Supreme Court has described as “neutral principles of law,” rather than religious law.  That is, if a court can enforce the payment as it would any other contract where one party obligates themselves to pay another, it is usually willing to do so. If, however, the court must consider whether or not Islamic law has been violated, it deems this to be a form of church-state “entanglement” in which it is constitutionally prohibited from being involved.

In the final post, however, I will show that this approach of keeping distance from the actual content of religious law broke down entirely in the one case that references a sharī’a ban—Soleimani v. Soleimani.  In its effort to point out how iniquitous and unfair Islamic law was, it entered into the actual interpretation of Islamic religious doctrine, and in so doing, made a true muddle of it, in a manner that a scholar with even casual acquaintance of Islamic law would find breathtakingly ignorant.

Before advancing to that, the primary purpose of this initial post is to offer a brief introduction to the problem of the mahr in US court, out of which all of the relevant case law stems. Under Islamic law, the mahr is paid by the groom, or his family, as part of the marital contract.  The payment is almost always negotiated between the parties (or family members acting as their representatives).  However, if one is not negotiated, then it is supposed to be set by a court, because the marriage is not valid without it.  The payment can be immediate, or part of it can be deferred to a date no later than the earlier of divorce or death.  There are many justifications for the mahr that have been offered over the centuries. Quite a few medieval scholars found it similar by analogy to a sale price. Other prominent jurists of the classical era, most notably the Maliki scholar Ibn Rushd, or Averroës, forcefully rejected this view on the ground that a bride does not “sell” her body for mahr because sex is a part of the marriage that both parties are intended to enjoy equally.

Modern Islamic scholars regard the mahr as a gift that a husband is obligated to provide a wife, and that serves as a form of “divorce insurance” in that it prevents a husband from being arbitrarily divorcing his wife given the severe deferred dower penalty that can attach if he does so.  Certainly, the overwhelming majority of modern lay Muslims adopt this view, and are quite unaware of historical nuances of Islamic schools of centuries ago.

The problems in enforcing the mahr in US court given this very summary background might seem relatively obvious.  The mahr is not a prenuptial agreement in any pure sense, because it is not actually a bargain wherein a wife forgoes some sort of right to joint property in exchange for a sum certain.  It is true that Islamic law does not generally have a marital property doctrine, such that the parties divide all property obtained during the marriage between them at divorce.  It is also true that a wife under Islamic law generally has no expectation of receiving any sort of alimony from her husband for more than three months after their divorce.  However, the fact that a woman in, say, Iraq or Jordan does not expect such support or the benefits of a marital property doctrine but that she does receive a mahr is different from saying that she bargained her right to such support away in exchange for a mahr.  She did no such thing.

Nor is mahr really a gift without consideration, as the common law would understand it.  After all, there is no lawful Islamic marriage contract without a mahr, and so to compare it to the types of gift promises that the common law has long regarded as a moral, but not a legal, obligation is quite distorting.  In essence, the problem is that the mahr does not easily fit into any category of debt recognized in the common law, and judges have long struggled to find a way to address it.

There are two additional aspects to this that affect nearly every U.S. court judgment that pertains to the mahr.  The first is that Islamic law is hardly univocal or monolithic in any sense, whatever its detractors might say to the contrary.  This diversity renders it quite difficult to apply in U.S. court, and the mahr is no exception to this problem.  Jurists have long disagreed on contours of the mahr doctrine, including, most saliently for our purposes, whether a deferred dower is due if the marriage is dissolved because of some sort of fault on the part of the wife.  Indeed, any competent scholar of Islamic law would be compelled to point out that a diversity of viewpoints is an inherent feature of Islamic law and therefore all the disparate viewpoints are Islamic.  This answer, immensely appealing to jurists and seminary students, is frustrating to any court attempting to rule on a matter before it.

The second problem is that Muslims in the United States tend to do a very bad job of specifying in any real fashion precisely what it is they are agreeing to, and how they would intend that agreement to be enforced in state court.  One could, after all, simply draft a contract to specify not only the mahr amount, but also the specific circumstances under which it could be expected to be paid.  If this were done, there would be virtually no need to reference Islamic law at all—New York law would serve as well.  Indeed, Islamic finance contracts are largely drafted on this basis, and rely overwhelmingly on New York or English law as the basis for decision. Those courts that have been asked to interpret these contracts have had no problem doing so, precisely because they are able to treat them no differently than any other contract that appears before them.  The same is almost never true for the mahr, because it is drafted hastily, summarily, and without any real attention to necessary legal detail at all.  It is perfectly clear that it has not been reviewed by a lawyer, because no competent counsel would ever approve the cursory form that the mahr takes in the overwhelming majority of instances.

Having thus explored the problem that the mahr presents in United States courts, I turn now to the manner in which such courts address the enforceability of the mahr when the question appears before them.

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