The Irony of Sharī’a Bans: Part III

By Haider Ala Hamoudi

In my two previous posts on the matter of mahr in U.S. courts, I made the point that the enforceability of the mahr, or the nuptial payment that a groom or his family must pay to the bride as part of the marriage contract, depends on the extent to which the obligation can be enforced on the basis of neutral principles of general contract law.  That is, U.S. courts would deem it to be an unconstitutional “entanglement” of state law and religious doctrine—a breach of sorts of the wall of separation as between church and state—if a U.S. court were to try to interpret religious rules.  Therefore, a ban on the use of sharī’a in U.S. court serves no real purpose as concerns the mahr, because courts will not enforce the mahr if they have to use shari’a to do it.  They will only enforce it if they can do so by applying the same contract rules that they do with every other contract.

The sole case addressing the mahr that I have been able to locate in a jurisdiction with a ban on the consideration of foreign law in effect—Soleimani v. Soleimani, in the state of Kansas—suggests strongly that the ability of state courts not to consider religious law is ironically impeded, rather than aided, by the presence of a ban on a court using religious law.  In Soleimani, a wife sued to recover the deferred mahr owed to her of $677,000 under a marriage contract concluded in Iran.  As noted in the first post on this subject, a “deferred” mahr is one that a husband does not pay upon marriage, but rather is deferred until a later date—often divorce or death.  It therefore acts as a form of “divorce insurance” in the event that a husband later seeks a divorce, because it forces a large financial penalty upon him for doing so.

The Court’s fundamental conclusion was that it “simply finds a lack of proof related to the mahr agreement.”  Among other things, the actual marriage contract specifying the mahr was in Farsi, it had never been fully translated, and the parties disagreed about some of its key terms, among them precisely when the deferred mahr would be due and payable.  Moreover, the court concluded, determinations of the enforceability of the mahr depended on the interpretation of Islamic law, including whether or not the mahr obligation extinguished if the wife initiated the divorce filing, or if the couple did not have a child within five years of marriage.

It is important to note that these determinations are eminently reasonable ones under secular state law, and would be cause for a court to decline to enforce the mahr whether or not there was some sort of ban on the consideration of foreign law.  As noted in the second post, previous courts have only enforced the mahr when they have found it possible to do so using “neutral principles of contract law.”  Such courts have deemed it unconstitutional to interpret Islamic law to enforce a mahr.

The Court could therefore have rested its conclusions there, and the sharī’a ban operative in Kansas would have proven, from a purely legal perspective, superfluous and useless.  In fact, the ban was by its very terms completely inapplicable to the case.  This is because it reads, in relevant part:

A contract or contractual provision, if capable of segregation, which provides for the choice of foreign law, legal code or system to govern some or all of the disputes between the parties adjudicated by a court of law or by an arbitration panel arising from the contract mutually agreed upon  shall violate the public policy of this state and be void and unenforceable if the foreign law, legal code or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage. (emphasis supplied).

Thus, according to the ban itself, it only applies when the contract or contractual provision calls for the application of foreign or religious law.  Established state practice makes clear that the only constitutional way that a mahr could ever be enforced is if it can be done using domestic, secular law.  Indeed, the parties in Soleimani specifically agreed that the law of Kansas applied to all disputes in the case.  The Court could simply have pointed this out, and thereby avoided any discussion of the religious law ban set forth in applicable Kansas law.  From a purely legal perspective, it had no purpose.

Yet the Court chose to engage the state ban. This is unsurprising, given that the ban was designed to ban sharī’a and the mahr originates with sharī’aOnce it had done so, it entered into the thickets of Islamic religious doctrine, where it proved fundamentally ill equipped to navigate.  Specifically, the Court pointed out that women cannot pronounce divorce under Islamic law in the manner that men can, and that men can do it on a summary basis.  The Court even found fit to cite to the infamous “triple divorce” wherein a man can permanently divorce his wife by orally pronouncing it three times.  The Court indicated that it was not clear that the mahr, which was part of the broader Islamic contract, could actually be segregated from these broader discriminatory rules.  Moreover, even if it could, then the court “would be put in the dilemma of fashioning a remedy under a contract that clearly emanates from a legal code that may be antithetical to Kansas law.”  Specifically, the court would have to “value” the wife from the standpoint of her beauty and virginity, among other factors, in a manner that would render her chattel, rather than a human being.

It is hard to imagine getting Islamic law more wrong than the Court did.  Certainly a student in my Islamic law class who managed to reason out such nonsense in interpreting the Soleimani agreement would be assured of a barely passing grade, if that.  First of all, the triple divorce is not valid in Iran, the state where the Soleimanis married, nor is it acceptable under Shī’ī religious doctrine.  The couple was plainly Shī’ī, given the Court’s references to temporary marriage, described later.  In other words, the Court was citing to supposed iniquities in Islamic law to deny enforcement on public policy grounds to a mahr agreement, when the iniquities it was citing to were simply not at all applicable as concerns the relevant religious or legal doctrine that would have applied to the Soleimani’s marriage contract.

Second of all, the Court would certainly never be asked to fashion any sort of remedy based on a bride’s virginity or beauty.   The Court’s reference is to medieval juristic accounts of what is known as mahr al-mithl, or what a mahr should be in the absence of an agreement on a specific amount.  Obviously, no American court is going to impose upon a groom an obligation to pay an amount that is not set out in a written contract, but is assumed under Islamic law.  In any event, that obligation simply is not relevant in the case the Court was hearing, where the remedy the Court would be in the “dilemma” of fashioning would be an award of $677,000. This amount is set not on the basis of the divorcing wife’s virginity, nor her beauty, but because this is what the husband agreed to pay her if he divorced her.

Finally, the Court references repeatedly an earlier “temporary marriage” between the parties, which it implies, seemingly at the husband’s invitation, is equivalent to a contract for prostitution.  The Court points out that the husband was married to his first wife when concluding that first contract, thereby furthering the impression of a system that regards women as chattel.  The problems again are manifold.  “Temporary marriage” is not a general Islamic doctrine, but rather an exclusively Shī’ī one.  The fact that it is not a contract for prostitution is belied by the fact that the contract can involve a mahr of no more than teaching a “wife” a verse of the Qur’ān (a rather useful symbolic mahr for a young couple not actually seeking to marry but to legitimize their premarital relationship through a convenient fiction).  In Soleimani, the mahr was $116,000, which hardly sounds like a prostitution contract, either.  Finally, even if we were to assume that the temporary marriage was a contract for prostitution, then the court’s repeated references to it and suggestions arising therefrom are curious, and hardly female empowering, rather than simply Islam bashing.  We might thus imagine  a state court ruling on a divorce where Islamic law was not at issue, where the court implied on several occasions that the wife had been a prostitute before she was married, and then denied her an amount from her husband that he had agreed to pay her on divorce.  There would probably be some commentary on the ruling.  I do not expect much of it would be praise of the state court judge for his enlightened views on women.

In sum, this is a court that does not seem motivated to advance some recognizable conception of women’s rights, given that it is denying the wife’s petition, in a manner clearly financially detrimental to her.  Nor does it seem particularly good at understanding Islamic law, let alone interested in it. The effort seems more like an amateurish greatest hits pastiche of the most embarrassing aspects of Islamic law over the centuries. The Court mashes together medieval readings of how to value brides, rejected frequently by modernists, with Sunni rules on triple divorce to Shī’ī ones on temporary marriage, in a manner that no Muslim alive would find a recognizable, or fair, reflection of their views of this vitally important institution.

Though this is something of a calumny of Islamic law, it is nonetheless fair for a state court in Kansas, even one hypothetically operating in good faith, to be unaware of the nuances of Islamic law. This is precisely why other courts have decided to enforce a mahr only if it can do so without considering religious law.  The problem is that here, the court tries to go farther by suggesting that even if the mahr agreement were somehow enforceable under neutral principles of Kansas contract law, it might still be unenforceable, because inextricably embedded in a system that violates Kansas public policy.  To make a determination like that, one must necessarily examine the religious underpinnings of the system. The Kansas court proved itself woefully incapable of doing that.

The dangers, to be clear, run beyond those attending to potential concerns of entanglement between state and religious law.  Indeed, every commercial lawyer should be somewhat concerned of the implications of Soleimani.  Suppose, for example, a Kansas business leader purchases Islamic insurance from a Saudi company, and seeks to enforce her contract under Kansas law, where the insurance contract itself specifies the application of Kansas law and the jurisdictions of Kansas courts.  (As noted in my first post, Islamic financial and commercial instruments almost always specify a secular law—usually English or New York law—as the governing law, as well as a secular state court or arbitral body as the governing forum.)  Will a Kansas court actually interpret that contract as it would every other Kansas contract?  Or will the purported sharī’a ban that Kansas has enacted be read as the Soleimani court has read it, as a basis to examine Islamic religious doctrine in matters of commerce more closely, and to decline enforcement of the contract if it finds, using analysis that at its most charitable would be described as inexpert, that it somehow violates Kansas public policy?

It is hard to believe that very many commercial actors, no matter how secular, would be pleased with the second approach.  It seems as if Kansas, and others like it with similar religious law bans, have just entangled their courts in matters that are well beyond their competence to consider.

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