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 which the actions initially took place, especially if the parties to those actions were citizens or residents of that country — for instance, the place where the marriage supposedly took place, where the supposed divorce or adoption decree was procured, or where the property was acquired. If the question is whether a marriage contracted in France between two French citizens is valid, you look to whether the law of France was properly complied with in entering into the marriage. If the question is whether two Taiwanese properly divorced in Taiwan, you look at the divorce decree from the Taiwanese court, and if there are questions about its validity or scope you consult Taiwanese law. (If someone goes to Taiwan to divorce his Canadian wife, who has never been to Taiwan, that divorce decree might not be credited, on the theory that the court lacked jurisdiction over the wife. But if someone goes back to Taiwan to divorce his Taiwanese wife, especially one who has no contact with America, American courts would have no trouble viewing that Taiwanese judgment as dispositive of the husband’s marital status when he comes to America again.)

This is not some newfangled international law theory. This is deeply established American law — specifically the body of law called “choice of law” — which has long called for the consideration of foreign law in such situations.

Now as it happens in some countries, some legal questions — especially family law questions — are resolved by religious courts applying religious law. That’s true in some majority Muslim countries, such as Lebanon and Jordan. And it’s true in other countries, such as Israel and the Philippines, which (at least in some situations) leave family law questions to religious courts of the religion to which the family is recorded as belonging. So if you are a Muslim divorced in Jordan, your divorce comes from a Jordanian Sharia court.

What is American law supposed to do with that? The answer is the same as the answer with regard to a Frenchman divorced in secular French court: Consider the divorce decree handed down under the law of the relevant country (here, a Sharia divorce decree) and interpret it using the rules set forth by the relevant country (here, Sharia rules as understood in Jordanian Sharia courts). Again, that’s the solution that would be reached under standard, well-established American legal rules. What else is to be done? 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, and it’s not what American law calls for.

So, consider a real case, Aqel v. Aqel (Ky. Ct. App. 2005) (nonprecedential). Marie Aqel (an American citizen) went to Kentucky court and claimed that her supposed marriage to Mohammad Aqel (a Jordanian citizen who is a permanent resident of the U.S.) should be annulled. The marriage, Marie said, was never valid, because Mohammad was still married to his first (Jordanian) wife when he tried to marry Marie. Mohammad said no: He had gotten a divorce from his first wife in a Jordanian court before marrying Marie in Kentucky. Marie replied: That divorce was not yet final at the time of the marriage, because under the relevant Jordanian law the divorce isn’t effective until three months have elapsed.

The Kentucky court, applying long-established Kentucky choice-of-law rules, considered the Jordanian divorce decree (which came from a Jordanian Sharia court). It determined how the divorce would be understood under Jordanian Sharia law, concluding that the divorce was effective when the decree was issued, even though it could be revoked by the husband within three months after the decree. Because of this, Mohammad Aqel was unmarried under American law (which in this respect refers to Jordanian law, which in turn requires application of Sharia law) when he married Marie. The Marie/Mohammad marriage is thus valid, and has to be terminated by divorce (Mohammad’s view) and not annulment (which was Marie’s claim).

There was no violation of the Bill of Rights, or imposition of religious law, in that. The one possible objection would have been that American secular courts can’t determine what Sharia law actually means, since that would require a theological decision about the true meaning of Islamic principles. But I take it that in this context the court was not trying to determine “true Sharia” but simply trying to figure out what effect the divorce decree would have had in Jordanian courts — a predictive judgment, not a theological one, and much the same predictive judgment as if a court were trying to figure out the meaning under Swedish law of a Swedish divorce decree.

Of course there is much in Sharia law that the Kentucky court would not have been willing to follow. But so what? An American court can consider a foreign Sharia divorce without committing itself to following Sharia law for everything, just as an American court can consider English commercial law in interpreting a contract without committing itself to following English libel law or English restrictions on allegedly racist speech (or the privileges of the English nobility or the Anglican church). That we rightly dislike some aspects of a foreign country’s law doesn’t mean that we should completely ignore that law, when decisions under that law are relevant to figuring out the legal statuses of American residents.

This is not an attempt to somehow bend over backwards to help Muslims. This is Kentucky courts applying the same rules that they’d apply with regard to divorce judgments entered in any other country — the same rules that make sense for Kentucky law to apply in order to deal with remarriage and other matters in Kentucky. Considering foreign law is a practical necessity when people come to America carrying with them property, marital status, familial status, contracts, and other things that they acquired in foreign countries. And sometimes considering foreign law means considering religious law as applied in the foreign country’s courts, and considering the decrees of foreign religious courts.