By Haider Ala Hamoudi
My previous post explained the problems surrounding the enforceability in U.S. courts of the Islamic mahr—the nuptial payment that a groom or his family must provide to a bride to conclude the marriage. This post addresses the manner in which U.S. courts analyze the mahr in light of these problems. It shows that in fact there is no purpose to a sharī’a ban in this context, because a court will only enforce a mahr to the extent that it can do so without entangling itself at all in the process of interpreting what shari’a is, or what it has to say about mahr enforceability.
The first recent case to discuss is In Re Obaidi, where two children of Afghan immigrants signed a marriage contract that was written in Farsi, a language that the groom did not understand, on fifteen minutes’ notice to the groom. The groom was not versed in Islamic law at all, and was merely agreeing to go through the Afghan ceremonies in deference to his mother. The terms of the agreement were that he would pay $100 in immediate mahr, and $20,000 as deferred mahr. (The extent to which mahr serves as “divorce insurance” in the modern era is demonstrated by the amounts sought in immediate and deferred mahr in this case. Effectively, the wife was agreeing to take a symbolic amount from the husband at marriage, but to demand a considerable sum should he seek to divorce her before death. To the extent that he did not divorce his wife, the actual financial effect on the husband would be negligible).
The first interesting point concerns terminology. The court reproduces in its decision the very brief “Marriage Certificate,” which includes the mahr obligation referenced above. However, when it seeks to consider enforceability of the mahr, the court calls this document a “mahr agreement.” This is, strictly speaking, inaccurate. There is no such thing as a standalone mahr agreement—the mahr is part of the marriage contract, which is precisely why it takes the purported form of a marriage certificate in the In Re Obaidi case. However, a U.S. state or federal court is not going to “enforce” a marriage certificate that is not itself a legal document. In order to decide whether and how to enforce the payment obligation set forth in the mahr, the court needs to translate it into something it understands. This would be an agreement by one party to pay an amount certain to another in the future on the basis of a contingent event. The term “mahr agreement” seems to fit this description in a manner that “marriage certificate” does not.
Though In re Obaidi is decided by the Court of Appeals of the State of Washington, the court found it useful to adopt the framework of an earlier decision from New Jersey, Odatalla v. Odatalla. To quote In re Obaidi:
The Odatalla court looked for guidance to [the 1979 Supreme Court case of] Jones v. Wolf, which explained the “neutral principles of law” approach that allows agreements to be enforced based on neutral principles of law, not religious doctrine. In Jones, a dispute over the ownership of church property was taken to a civil court in Georgia. The court set aside the separation of church and state issues by applying the neutral principles of law doctrine. Justice Blackmun explained, “We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even when no issue of doctrinal controversy is involved.” In other words, the court determined that the controversy over the ownership of the property could be decided on neutral principles of law, not upon religious beliefs or policies.
Based on Jones, the Odatalla court determined that the mahr did not violate the separation of church and state doctrine if the court could apply neutral principles of law to the enforce the mahr. The court concluded that the mahr could be enforced by applying neutral principles of contract law. . . . Because the court determined that the mahr was simply a contract between two consenting adults, the court concluded that the mahr was not against public policy. [citations omitted]
The main takeaway from In re Obaidi, and from Odatalla and indeed Jones v. Wolf for that matter, is that if a United States Court is actually going to enforce a mahr, it is not going to do so on the basis of Islamic law. Courts in the United States would be prohibited under the First Amendment’s “Establishment Clause” from actually interpreting religious doctrine. This is precisely what the court refers to as “separation of church and state issues” in the passage quoted above. A U.S. court cannot opine on matters of religious doctrine. Hence, a court cannot decide in a church property dispute whether one faction of the church, or the other, is adhering more closely to the church’s true religious doctrine. If it were required to do so, it would have to decline to rule on the case.
A United States court can, however, decide a property dispute based on whose name is on the title to a deed. It can likewise determine whether or not a promise from one party to pay another is a valid and enforceable legal obligation. And it need not enter into the thickets of religious doctrine to decide either. On the basis of this, the court in Odatalla enforced the mahr agreement.
As for In Re Obaidi, the appeals court actually overruled the trial court’s determination that the contract was enforceable, precisely because the trial court interpreted Islamic law when it should not have. The trial court decided, using Islamic law analysis, that the wife was not abusive or unfaithful, and did nothing that would have resulted in a forfeiture of the mahr under Islamic law. In describing this as error, the court of appeals supplied instead of Islamic law analysis its own analysis, from the law of the state of Washington. Specifically, the court found that there was no real “meeting of the minds” on the contract terms, given that the groom could not even understand them, and also that the agreement was procured through duress, in that the groom was forced, fifteen minutes before his wedding, either to agree to them or to cancel his entire wedding.
In other words, in the context of two cases in two separate states involving mahr in U.S. court where there was no ban on the application of shari’a imposed by the legislature, the courts ultimately came to the same conclusion—the agreement could only be enforced to the extent that shari’a need not be considered. If, using neutral, state law contract doctrine, the obligation to pay mahr was enforceable, then the court would enforce it, as it would any other contract. If it was not enforceable under such neutral principles, or if no such neutral principles could be found and resort to interpretation of Islamic law was necessary, then the court would decline to review the contract. While it is true that the court in Odatalla enforced a mahr while the court in In Re Obaidi did not, much of this is because the agreements were different, from the standpoint of “neutral” state law. Contracts foisted upon a party fifteen minutes before their wedding in a language they cannot understand are usually not enforceable under state law. Contracts that are negotiated, understood, agreed upon and cover essential terms usually are enforceable. The framework for analysis does not change in such cases, but only the facts to apply to the framework.
It should be noted that Odatalla and In Re Obaidi are merely examples, and that other cases adopt the same framework. To cite to additional examples, Akileh v. Elchahal in Florida involved a mahr that was enforced under neutral principles of contract law, and it relied on an earlier New York case, Aziz v. Aziz, which did the same.
Thus, though advocates of sharī’a bans will quite often point to the mahr cases to demonstrate that there is a strong need for the sharī’a bans, in fact this is simply not true. Throughout the United States, state courts do not consider Islamic law when they determine whether or not to enforce a mahr. Rather, they will only enforce it if they can do so without reference to Islamic law. The ban therefore serves no real legal purpose in that it merely reinforces that which the courts are already doing, and indeed that which they have determined they are constitutionally compelled to do. This is to enforce contracts only to the extent that they can do so by exclusive reliance on secular, neutral principles of state law, and not with reference to religious criteria.
My final post will examine the one mahr case that references a shari’a ban, that of Soleimani v. Soleimani, from the state of Kansas. The post will show that the effort to keep religious doctrine separate from state law breaks down entirely in that case, and it does so because of the sharī’a ban. The Kansas ban, that is, had the opposite effect of preventing a court from considering sharī’a. It caused a court to do just that, in a manner that is quite dangerous.