A Kansas district court is the first to recognize the possible application of the American Laws for American Courts (ALAC) law in a case where a party sought to enforce a sharia-law based contract. ALAC was adopted in Kansas earlier this year and it is based upon the model legislation drafted by AFLC Co-Founder and Senior Counsel David Yerushalmi. The case at hand, Soleimani v. Soleimani, involves an Iranian-American couple who had been married according to both sharia and later by state law. At some point the woman divorced her husband (for cruelty and abuse) and sought to enforce a sharia-based prenuptial agreement called a mahr. The mahr required the man upon a divorce that was no fault of the woman’s to pay 1,354 gold quare, which are coins valued at $500 apiece or the equivalent of $677,000.
In this case, the court held that the mahr was unenforceable for many reasons so the woman was not able to extract $677,000 from her otherwise bankrupt husband (obviously even if the woman had won, it would have been a victory on paper only).
Now, in most cases, sharia is used to abuse the woman. Thus, as the court pointed out in Soleimani, sharia allows the husband to unilaterally divorce his wife with but an utterance of “I divorce you” three times–a fiat divorce not granted to the wife. Also, the woman loses custody of her children automatically under sharia when the children are still quite young irrespective of the best interests of the children (the latter “best interests” being the U.S. and international standard). Finally, even the mahr is often used against the woman because the negotiated amount is typically a pittance and far less than she might receive under state law marital dissolution distributions, especially if the couple had amassed even modest means.
In Soleimani, it just so happens that this case was about the woman trying to enforce a sharia agreement against the man. The court in Soleimani produced a well-considered and solid analysis of the problems associated with applying foreign contracts based upon foreign religious laws like sharia. First, the court noted that the woman’s lawyer had failed to provide a properly authenticated translation of the Farsi-language document so there was no way he could actually ascertain the meaning or the legality of the document.
Second, the court noted that even if he accepts the basic points of the mahr as agreed to between the parties, the court as an institution of government, could not possibly allow its enforcement. The court explained that one possible reason for this agreement’s invalidity, and this is key for our purposes, is that Kansas lawmakers passed a law–the Kansas version of ALAC–which would “preclude the courts from applying foreign law, legal codes or systems that violate the public policy of our state or federal constitutions.” Kan. Sess. Laws, Chap. 136, p. 1089-90 (2012). And, as the court noted, the law of the land under which the mahr was created–sharia–is so inimical to our basic constitutional principles (bedrock principles of liberty such as Due Process and Equal Protection) that to attempt to apply those laws to rule on the mahr’s validity might very likely violate Kansas’ ALAC.
Third, and this was really the constitutional underpinning to the court’s ruling, no state court judge could even begin to ascertain the meaning of the mahr without first penetrating the Iranian law under which the mahr was created and by which the mahr must be interpreted to make any sense–since it was the sharia legal system in Iran which created the context for the “meeting of the minds” of the formerly married couple. But, to even begin to apply sharia–whether it is the law of the land of Iran, Saudi Arabia, Gaza, Pakistan (regarding family matters), or any other sharia jurisdiction, a judge must apply sharia jurisprudence, or what is called usul al fiqh.
Fiqh is the term of art for the underlying legal analysis used by Islamic jurists in reaching decisions about the principles used to apply Islamic law. But, the process of fiqh, or even the more particularized legal rulings about an individual case by an Islamic judge (called a qadi), requires the jurist to look at the Quran, the Hadith (canonized narratives about the life of Mohammed and how he applied Islamic law in his day), and the earlier fiqh in order to understand what Allah would desire in a given situation. In other words, for a secular state court judge to utilize sharia in any decision he might make, he must play like Allah or at least play like a disciple of Allah. This means he is deciding upon “divine” or theological matters. And this is especially the case because Islamic jurisprudence does not allow for precedent. Each qadi must examine the relevant law (Quran, Hadith, fiqh) and then decide the law anew. There is never the case where a party can come to the judge and say, “The high sharia court yesterday held that in cases like this I win.” Thus, a secular U.S. judge who acts like a qadi, is in effect attempting to discern Islamic law by penetrating the will of Allah. And, if the U.S. judge is not trying to ascertain the will of Allah, his decision has no standing in sharia and he has failed what he thought his task was in the first place.
This, our Supreme Court has properly said, is an unconstitutional violation of the Establishment Clause. A U.S. judge cannot be in the business of deciding theological disputes and any dispute based upon sharia–i.e., the state law in places like Iran and Saudi Arabia–is entering into theological disputations about what Allah wants.
As we noted, the court in Soleimani refused to enforce the mahr–and properly so. The court’s decision was a great victory for ALAC, which was applied in this case just as it should.
And, to those who might argue that in this case the application of ALAC and the Establishment Clause worked to “hurt” the women, what these people miss entirely is that the woman was not “hurt.” Rather, she was told by the court to play on the even and quite civil and secular playing field governed by the laws of the state of Kansas. And, the reason that is the right result for the right reason, one need only consider the typical case where the man is seeking to use sharia to divorce his wife unilaterally, take the property and the children, and even to accuse her of blasphemy or adultery and subject her to the death penalty. As the Kansas court pointed out:
In disregarding the mahr agreement in the case at bar, the parties are not denied justice or a remedy. Rather, the protection of Kansas law, applicable to the parties here, requires an equitable division of property in a secular system that is not controlled by the dictates of religious authorities or even a society dominated by men who place values on women in medieval terms.
That is to say, when sharia doctrines/contracts are voided under ALAC or ignored via the abstention doctrine per the Establishment Clause, the parties are provided justice under existing state law. On the other hand, as in the case of Hosain v. Malik improperly and cruelly decided by a Maryland appellate court, when sharia is upheld, the losing party, typically the woman, has no recourse but to travel to the sharia jurisdiction (in Hosain it was Pakistan) to contest the matter.
The problem in Hosain was that the woman was left with a choice that either removed her child from the U.S. and from under her custody or created the default that her husband would gain custody because she might very well be put to death in Pakistan under the sharia. That is, she could stay in Maryland and allow the Maryland courts to take her child away from her based upon sharia’s “the Muslim man knows best” rule, or contest the custody ruling in a sharia court in Pakistan where she would put her life in jeopardy for having remarried outside of the laws of sharia. In Hosain, the Maryland appellate court used the authority of state law to impose sharia on this woman and deprive her of her most basic constitutional liberty embodied in the right to Due Process and Equal Protection of the Laws.