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 felt herself ill-treated by divorce, maybe she didn’t, but in any case she’s long out of the picture. Now he marries Wafa — an American Muslim — in the U.S. They live here many years, thinking they are legally married. Then Hamid leaves Wafa, and refuses to pay any spousal support, let her share in property acquired during the marriage, and so on.

Because “of how badly women are treated under Islamic law,” the argument goes, “American courts [are] supposed to ignore” the Lebanese divorce, since “Otherwise, we are just abetting injustice.” Hamid is therefore still married to Aida, and can’t be married to Wafa. The result: Under the suggested rule, American Wafa is out of luck, and can’t get any of the benefits of marriage (spousal support in the event of divorce, a share of community property, etc.). Of course, Lebanese Aida is in more luck — in principle, if she even knows about the situation, and is in any position to try to get money out of Hamid. The supposed “injustice” of the Hamid-Aida divorce is righted, even though it’s quite possible that there was nothing actually amiss about that divorce. (Perhaps Hamid was dirt poor at the time of that divorce, and had nothing to give Aida as a property settlement.) But what about the injustice to Wafa? The proposed rule doesn’t seem to care about that.

There is injustice against women aplenty in the world, including in Muslim countries. But the fact is that people get married and divorced in countries which follow Islamic legal rules as to those marriages and divorces. Then they come to America. The question for our legal system is how it can be just to those people (including to those women) who live under it, not how it can remain most theoretically pure of any contact with possible foreign injustice. Ignoring foreign Islamic marriages and divorces is not the path to fair treatment, of women or of anyone else.