Islamic Agreements in Civil Courts:

Mohammed Zawahiri and Raghad Z. Alwattar were married, in an arranged marriage. The day of the wedding, Zawahiri signed a "mahr" under which he promised to pay his wife $25,000 in the event of divorce. Last week, the Ohio Court of Appeals held that the agreement was unenforceable under generally applicable Ohio prenuptial agreement law (chiefly because it was "presented a very short time before the wedding ceremony and postponement of the ceremony would cause significant hardship, embarrassment, or emotional stress," and because "Zawahiri did not have the opportunity to consult with an attorney prior to signing the marriage contract"). This may well be an accurate statement of Ohio law, and I don't mean to quarrel with it here.

What particularly interests me, though, is the trial court's alternative basis for its decision, on which the appellate court didn't opine: The First Amendment barred enforcement of a mahr -- just as it would bar the enforcement of an agreement to give a Jewish religious divorce (citing an unpublished Ohio decision, Steinberg v. Steinberg, 1982 WL 2446 (Ohio. App.)). Though the mahr requirement "seems less like a religious act than the participation in a religious divorce ceremony," "because the obligation to pay $25,000 is rooted in a religious practice, it is similarly a religious act" and a court therefore can't order the husband to make the payment.

I saw a similar First Amendment argument made in last month's Ahmed v. Ahmed, but the appellate court didn't consider it because it hadn't been properly raised below. I also saw it made and rejected in Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ch. 2002):

[T]he Mahr Agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a "free exercise" of religious beliefs, no matter how diverse they may be. If this Court can apply "neutral principles of law" to the enforcement of a Mahr Agreement, though religious in appearance, then the Mahr Agreement survives any constitutional implications. Enforcement of this Agreement will not violate the First Amendment proscriptions on the establishment of a church or the free exercise of religion in this country. "The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity."

It seems to me that the New Jersey court got it right, and the Ohio trial court got it wrong: If two parties enter into an agreement promising to perform a secular act (e.g., pay money) in the event of some secularly ascertainable event (e.g., a divorce), there's no Establishment Clause barrier to enforcing such an agreement. There might be state law principles constraining such agreements. But the religious motivation for the promise, and the religious event in which the promise was made, shouldn't affect the analysis. (See Jones v. Wolf, which holds that church property disputes may be resolved by civil courts using "neutral principles" of contract and deed interpretation.)

I would go further and say that refusing to enforce a contract simply because of its religious source or motivation would itself violate the Free Exercise Clause, because it would deny people an important generally available right (the right to have contracts enforced) because of their religious motivations. A person who has a religious reason for entering into a contract is just as entitled to enforcement of the contract as a person who has a secular reason for doing so.

There are indeed reasons why civil courts may not enforce certain contracts, for instance when enforcing the contract requires interpretation of religious doctrine, or when it would require ordering people to perform an act that has purely religious significance. (I should note that there's a conflict among courts about whether enforcing prenuptial contracts to give a Jewish religious divorce, called a get, would violate the Establishment Clause; but that, I think, is because the giving of the divorce, as opposed to paying money, is indeed an act that has purely religious significance.) But when the contract simply calls for a payment of $25,000 in the event of a divorce, and the parties do indeed get civilly divorced (so there's no need to determine whether there's a valid religious divorce), then it seems to me that the motivation for the contract should not make any difference.