Archive | Islamic Law in the American Legal System

With Defenders Like This, Who Needs Oppressors?

A commenter responded to my Why American Courts Should Sometimes Consider Islamic Court Rulings post with this:

This shows a complete lack of understanding of how badly women are treated under Islamic law.

We give effect to English or French or even Taiwanese domestic decrees because we can have some confidence that whatever the substantive differences, at least there is some iota of fairness involved. The woman has a chance at least of justice in a French court, but no chance at all in a Saudi court.

Are American courts just supposed to ignore all marriages, divorces, and other matters entered into by Jordanian, Israeli, Lebanese, etc. Muslims in their countries of origin, under the legal principles that those countries require? That doesn’t make much sense

It makes all the sense in the world. Otherwise, we are just abetting in-justice.

So let’s see where the commenter’s desire for justice for women from Muslim countries will take us. Hamid and Wafa marry in Lebanon; since they are Muslim, the marriage is done through the Sharia court system in Lebanon. They come legally to America, and live here many years, thinking they are legally married. Then Hamid dies without a will, thinking Wafa would get his property as his wife.

But because “of how badly women are treated under Islamic law,” the argument goes, “American courts [are] supposed to ignore” the Lebanese marriage, since “Otherwise, we are just abetting injustice.” The result: Under the suggested rule, Wafa is out of luck, and can’t get any of the benefits of marriage (intestate succession, coownership of community property, etc.). What a wonderful way to treat women.

Or say that Hamid had married his first wife Aida in France, many years ago. They moved to Lebanon, and then some years later got divorced. Maybe Aida [...]

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Tit-for-Tat, and Collateral Damage

On the Why American Courts Should Sometimes Consider Islamic Court Rulings thread, a commenter writes:

I think one consideration should be if the foreign court would honor a American court’s findings. This shouldn’t be a one-way street.

I suspect that most foreign countries are perfectly happy taking at face value American marriages and divorces between American citizens. But say that isn’t so — say, for instance, that Iran for some reason refuses to recognize American divorces.

Now say that Jane Doe, an American citizen, meets and marries Mohammed Moe, an Iranian refugee who has now become an American citizen. It turns out that decades ago, Moe had married Francoise Foe in France, Moe and Foe moved to Iran, and then Moe and Foe divorced in Iran. Everything was perfectly normal and aboveboard in all these transactions. You’d think the situation would be straightforward: Doe and Moe are to be treated as married under U.S. law, and this result would be in the U.S. legal system’s interests.

But under my correspondent’s proposal, Doe and Moe are not married, because Moe is still married to Foe. Moe’s French marriage to Foe is recognized (because France recognizes American marriages). But Moe’s Iranian divorce from Foe is not recognized (because, by hypothesis, Iran would not recognize American divorces). Doe and Moe thought they were married. They relied on their being married. It’s on balance good for U.S. to treat people like them as married, since legally recognized marriage is generally speaking socially valuable. But now they’re not married, not because of any fault of their own but because of the stupid rules of Iran. And remember that Jane Doe had never even been to Iran; why should she suffer as a result of the hypothetical Iranian refusal to recognize American decisions?

Does that [...]

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Potentially Coerced Marriages and Statutory Rape Laws

There is one twist on the foreign coerced marriages question that I wanted to deal with separately. As I mentioned earlier, marriage provides the poorer partner (in the scenario my correspondent was describing, usually a young woman) with important rights. Refusing to recognize Islamic law marriages on the ground that some of them might be coerced might then just add to the young woman’s problems.

But marriage does give the wealthy older husband one important legal right — the right to exemption from statutory rape laws. In California, for instance, any sex with an under-18-year-old is a crime, but not if the under-18-year-old is one’s spouse. Sex with an under-14-year-old is still a crime, even if the parties are married; but as best I can tell, sex with a 14-to-17-year-old spouse is not criminal in California. And marriages of under-18-year-olds can generally happen even in the U.S., with parental consent. There is probably consensual, noncriminal sex going involving an marriage under-18-year-old going on in California even as you read this, likely involving a person who was lawfully married in the U.S. You might think that’s good or you might think that it’s bad. Still, given that California law recognizes the spousal statutory rape exception as to marriages entered into in the U.S., I don’t see why it should take a different view as to marriages entered into outside the U.S.

What if the marriage, whether entered into in the U.S. or outside, was coerced? Sex within that marriage would still be rape if it itself is procured by force or threat of force. But say that a 16-year-old girl was forced into the marriage outside the U.S. — maybe even with the active participation of a husband who was a U.S. citizen or U.S. resident at the time [...]

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Coerced Marriages

A commenter on the Why American Courts Should Sometimes Consider Islamic Court Rulings thread writes,

The scenario we commenters have discussed here more than once is the possibility that an arranged and nonconsensual, or at least coerced, marriage takes place in another country, and then the couple moves here. We’ve disagreed as to whether that marriage and what goes on in its context should be treated exactly like the usual American marriage, into which both partners entered willingly.

This is an interesting problem, but refusing to recognize Islamic court rulings is entirely the wrong way of responding to the problem. First, many marriages entered into under Islamic law — which, as I mentioned, is the normal way that Muslim couples would get married in Lebanon, Israel, Jordan, parts of the Philippines, and in many other places — are not coerced. Second, coerced marriages could well be entered into in countries which provide for civil-law marriage; it’s not like civil courts routinely investigate whether a marriage is coerced.

But beyond that, if the worry is coercion (which I assume means physical coercion, or psychological or economic coercion of minors, rather than just coercion of adults through family or community pressure), refusing to recognize the marriage will often compound the harm to the victim. Say an 18-year-old girl is forced to marry a rich older man, perhaps through threat of beatings or worse from her family. She gets pregnant, comes to America, and lives with the man for years.

What good would refusing to recognize the marriage do to her? It wouldn’t protect her from being raped, since the spousal rape exception is no longer recognized in the U.S (except maybe in South Carolina). Nor does it matter whether the law of the country where the marriage took place has a [...]

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Why American Courts Should Sometimes Consider Islamic Court Rulings (and Islamic Law)

Tuesday, I blogged about a Massachusetts court’s decision not to honor a Lebanese Islamic court’s child custody order; I thought the Massachusetts decision was a sound application of religion-neutral Massachusetts law, under which foreign child custody orders dealing with Massachusetts resident children are honored only when they are entered based on standards that are close enough to the Massachusetts “best interests” test. One commenter, though, would have gone further:

What happens in Lebanon should stay in Lebanon. Okay, I admit a bit corny but Shira law does not belong in the U.S. as long as we have the Bill of Rights and the Constitution. We believe we are a nation free of religious influence (some may have valid arguements against this) and should remain as such. Granted, christianity had significant influence on our legal foundation but we don’t go to Bishops or Pastors for their input. Shira is strictly religious law and nothing else.

Others have made similar arguments, arguing against any American court consideration of foreign Islamic court rulings, and of Islamic law. I think those arguments are mistaken, and here’s why.

Every year, millions of people from other countries legally come to America, whether as citizens, permanent residents, temporary workers, students, tourists, or whatever else.

American law naturally wants to know certain things about them. Are they married? If they were married, are they divorced? Were the supposed adoptive children they’re bringing with them really adopted? How about the property they’re bringing with them — who really owns it? If they go back to their country of origin, and come back claiming that they divorced the spouses that are still living there, are they telling the truth?

The way that American law generally answers these questions is by looking at the law of the foreign country in [...]

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American Court Refuses to Honor Lebanese Islamic Court Child Custody Order

Strikes me as quite sensible, not because of some special disability imposed on Sharia law as such, but because of the application of generally applicable American rules, under which comity is given to certain foreign child custody decrees only if they generally comply with American norms. The case is Charara v. Yatim (Mass. Ct. App., decided today) (some paragraph breaks added):

This is an appeal by the father, Said Yatim, from a divorce judgment entered in the Probate and Family Court that awarded custody of the couple’s two minor children to the mother, Hiba Charara; divided their property; and ordered the father to pay child support. The parties, as well as their children, are United States citizens who were living in Massachusetts when the marriage suffered an irretrievable breakdown in 2004. On May 30, 2004, the couple (with their children) returned to Lebanon for the purposes of there obtaining a religious divorce. Once in Lebanon, the father did not institute divorce proceedings as he had agreed, but instead sought and obtained custody of the two children. The mother returned to the Commonwealth and instituted the underlying divorce action, in which she also sought custody and child support.

Following a trial, a judge of the Probate and Family Court concluded that no deference was due the custody order issued by a Jaafarite religious tribunal (Jaafarite Court) in Lebanon. The probate judge based his decision on evidence, including the testimony of experts, that the Jaafarite Court’s custody order was not made in “substantial conformity” with Massachusetts law regarding the best interests of the children….

On June 23, 2004, the father initiated an action for reconciliation and custody in the Jaafarite Court in Lebanon. That court has jurisdiction [under Lebanese law] over family matters arising between persons of the Shia sect of the

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