The Volokh Conspiracy

From Souratgar v. Fair (S.D.N.Y. Dec. 26, 2012):

Petitioner Abdollah Naghash Souratgar, an Iranian citizen, petitions this Court for the return of his son, Shayan, to Singapore. Shayan, who will soon be four years old, was born in Singapore and has Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore. She traveled to the United States where neither petitioner, respondent, nor the child has any meaningful ties or connections.

The father sued in American court, seeking return of the child to Singapore. The relevant American legal rule is that provided by the Hague Convention treaty, and the federal statute — the International Child Abduction Remedies Act — that implements it:

The Hague Convention seeks to “secure the prompt return of children wrongfully removed to or retained in” signatory states. The United States has ratified the treaty and implemented its terms through ICARA. Singapore acceded to the treaty in May 2012.

Under the Hague Convention, a child’s removal from a signatory state is wrongful when “[ (a) ] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and [ (b) ] at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The treaty applies to children under the age of 16....

In order to prevail, petitioner must establish by a preponderance of the evidence ... that “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” ...

Based upon the record as a whole and the Court’s assessment of the credibility of the witnesses, this Court finds by a preponderance of the evidence that petitioner has established each required element under the Hague Convention: (1) the child was a habitual resident of Singapore; (2) the child’s removal was in breach of petitioner’s custody rights; and (3) petitioner was exercising those rights at the time of the child’s removal. The Court further finds that respondent has failed to prove by clear and convincing evidence either of her affirmative defenses (1) that the child will be subjected to a grave risk of harm if he returns to Singapore, or (2) that fundamental principles of the United States relating to the protection of human rights and fundamental freedoms do not permit repatriation of the child....

The court concluded that there was no “grave risk of harm if [the child] returns to Singapore,” despite husband’s abuse of the wife, because the spouses would no longer be living together and because the Singapore legal system would likely provide sufficient protection to the wife and the child. The court then turned to the question whether the “fundamental principles of the United States relating to the protection of human rights and fundamental freedoms” should preclude return of the child, given the potential application of Islamic law in Singapore to Muslim family law disputes. (Muslims are a minority in Singapore, but Singapore, like some other countries, including Israel, Lebanon, and India, provides that in some situations family law disputes are routed through the religious courts of the religion to which the family belongs.) Here was the court’s reasoning:

[Wife] argues that returning the child is not permitted by the fundamental principles of the United States because the custody determination in Singapore will be made in a Sharia Court. [Singapore law] grants the Sharia Courts in Singapore considerable discretion in considering evidence from non-Muslims. Ms. Hassan testified that a woman’s testimony is worth less than a man’s in the Sharia Courts. Moreover, she testified that Sharia Law applies presumptions favoring fathers and disfavoring non-Muslim parents in custody determinations. These rules, [wife] urges, ought shock the conscience and offend notions of due process.

The Court concludes, however, that it need not reach the issue of whether the procedural and substantive rules in Sharia Courts “shock the conscience” or “offend all notions of due process” because the Court finds that [wife] has failed to prove that it is more likely than not that the Sharia Court will make a final custody determination in this case.

As noted, Singapore is a predominantly non-Muslim country with about 15 percent of the population as Muslim. Singapore has a dual legal system in which civil and Sharia Courts function concurrently. [Singapore law] sets out guidelines for the Sharia Courts in Singapore and vests them with limited jurisdiction. For instance, a Sharia Court does not have jurisdiction to consider domestic violence matters, including applications for protective orders. The Sharia Courts have exclusive jurisdiction in divorce actions where both spouses are Muslim or where the parties were married under the provisions of the Muslim Law. Unless a spouse commences a divorce action in the Sharia Court, the Sharia Court is “divested of any authority or jurisdiction in [a custody] matter.” However, when a divorce action is pending in Sharia Court, the Sharia Court also has jurisdiction to decide ancillary matters of custody and division of property.

Still, [Singapore law] provides procedural mechanisms for a litigant in Sharia Court to commence or continue custody proceedings in the Singapore civil courts. A civil court would be able to decide the issue of custody if both parties “consent to the commencement of the civil proceedings” or “consent to the continuation of the civil proceedings,” and obtain a certificate of attendance, which is issued after a counseling session. If the parties do not consent, the Sharia Court may still, in its discretion, grant an application for leave to commence or continue civil custody proceedings, if “every party who will be affected by such leave has been notified of the application at least 7 days before the grant of such leave,” and the parties “attend counseling provided by such person as the Court may appoint.” The frequency with which these provisions are invoked in practice is unknown, in part because there is no system of recorded judgments.

True, the order of February 16, 2012 of the Singapore family court contemplates that the issue of custody will be determined by the Sharia Courts. But that order was entered into after a mediation session and was “BY CONSENT” of the parties, each of whom was represented by counsel and neither of whom challenged the order. If [wife] had objected to the Sharia Court acting on the custody matter, one would expect her counsel to have documented the client’s desire or intent to have the Sharia Court stand down in favor of the Singapore Court.

The Court rejects the [wife]‘s after-the-fact claims that she never consented to the matter proceeding in the Sharia Court. The [husband]‘s expert set out plausible grounds why she may have rationally thought such a path was in her interest. Thus, any unfairness in the process in Sharia Court is, in this case, a self-inflicted wound.

But in any event, circumstances have evolved which make it likely that the Singapore family court where [wife]‘s original custody petition and [husband]‘s cross-petition remain pending will exercise jurisdiction over the custody dispute. First, the Court finds that there is no divorce action currently pending between the parties in the Sharia Courts in Singapore.

Second, in an affidavit dated December 7, 2012, [husband] affirmed that he “undertake[s] not to pursue any action in the [Sharia] Court of Singapore in relation to the custody, care and control of [his] son” and “commit[s] to the custody proceedings being continued and adjudicated upon in the Family Court of Singapore within the realm of civil proceedings.” The affidavit was sworn to at the Singapore Consulate in Manhattan, and Ms. Gomez [husband’s lawyer] filed the document as an affidavit in the Subordinate Courts of Singapore on December 11, 2012.

Ms. Gomez testified before this Court that [husband]‘s undertaking, if given to the Family Court of Singapore, is binding and enforceable. According to Gomez, it will require a judge to enter a court order for it to be punishable by contempt. [Husband] has familial ties and significant business interests in Singapore. He has been substantially compliant with court orders during the pendency of the Singapore proceedings and these proceedings. [Wife] has failed to prove that custody will be determined by the Sharia Courts rather than the civil courts.

[Wife] also urges that there are insufficient protections against domestic violence in Singapore, and thus, Article 20 bars the child’s repatriation. But the Court finds that Singapore has reasonable procedures to ensure the safety of the child during the pendency of the custody proceedings including supervised visitation. Moreover, [wife] was able to obtain two expedited orders, and had the opportunity to proceed to trial on each application in order to obtain permanent [protection orders].

It may be the case that [wife] was barred in the second proceeding from bringing up evidence relating to the first application, which she voluntarily dismissed, due to the court’s evidentiary rules. However, this does not rise to the level of shocking the conscience or offending all notions of due process. [Footnote: Article 20 is silent as to whether it applies only to the human rights and fundamental freedoms of the child, or to the parties in the case as well. The Court concludes that Article 20 is broad enough to encompass the rights of the parties but only insofar as they relate to the exercise of custody rights of the child.] Accordingly, fundamental principles of the United States regarding the rights and freedoms of domestic violence victims do not prohibit the return of the child under Article 20.

The court was thus able to duck the question whether American courts should refuse to send children back to countries where Sharia law likely would be applied in considering their cases. What do people think should be the right answer there? Again, focus on a situation where the parents and the child have no prior relationship with America — they aren’t American citizens, and they weren’t living in America when the dispute arose — but one parent brings the child to America in order to keep the other parent from having custody or visitation with the child.

Should American courts refuse to send the child back to the country of origin, because the judicial system in that country is biased against women and non-Muslims? (This could be either the overall judicial system, in a country that applies Sharia broadly, or the Islamic family law judicial system in a country that provides that family law disputes are to be decided by religious courts of the family’s religion.) Or should they say that, when the parties have no prior contact with America, the custody of the child should be decided under the laws of the home country, even if such laws would be seen as unacceptably discriminatory under American standards?

Relatedly, I take it that there’s a reciprocity dimension here: If America refuses to send back children who are taken from Country X to America, then Country X might well do the same when an American parent flees to that country, seeking to deny the other parent’s custody or visitation rights. (Assume that country X is otherwise a friendly country, which would normally be willing to send the American children back so that their parents’ rights could be effectively decided by American courts.) How should that affect the analysis, if at all?

An interesting case, S.B. v. W.A. (N.Y. trial court Sept. 26, 2012). A quick and oversimplified summary:

1. In 1998, S.B., an American professional woman, married W.A., an Egyptian immigrant who eventually became an architect. They lived until 2006 in America, where their two children were born. They then moved to the United Arab Emirates, where W.A. had gotten a new job.

2. In 2009, S.B. accused W.A. of attacking her, inflicting “severe bruises and a fractured skull.” As a result, W.A. was convicted of assault in the UAE, on the grounds that he had (according to the UAE court) crossed his legal limits to discipline his wife. “The defendant never denied using physical force against the plaintiff, but defended the charges claiming he had the right to use physical means to discipline his wife and that her injuries were not as severe as she claimed.”

The assault formed the grounds for S.B. to divorce W.A., also in the UAE; the UAE divorce court granted S.B. the divorce, awarded her the $250,000 mahr (essentially an amount provided for in the parties’ Islamic premarital agreement in the event of a divorce), ordered W.A. to pay child support and some amount of spousal support, and gave S.B. custody of the children.

3. Both parties then returned to the U.S., and S.B. moved in New York courts for recognition and enforcement of the UAE decree.

4. The short version of what the court generally ruled (setting aside some procedural complexities):

a. The court recognized the UAE divorce.

This seems right to me, given that the UAE was a natural place for the parties to divorce, especially since neither party was planning to move away immediately. (The wife had a banking job in the UAE, and wanted to abide by the terms of her three-year employment contract). Both parties had the opportunity to participate in the litigation (this wasn’t just a case where the husband and wife are living in the U.S., and the husband goes back to Pakistan to get a divorce without the wife’s participation).

Moreover, though one can imagine divorce orders that were unfair to the losing party, for instance because the divorce rules were discriminatory based on sex and religion, there is little reason to think that the party opposing U.S. recognition of the divorce — the husband — was unfairly treated in this way when it comes to the divorce itself. This is a good example of why American courts’ general willingness to recognize (usually) foreign divorce decrees makes sense.

b. The court viewed the decree ordering the payment of the $250,000 mahr enforceable (though there were procedural obstacles, which I won’t go into, with immediate enforcement). “[A]greements predicated upon religious doctrine and customs be enforced in civil courts, as long as enforcement does not violate either the law or the public policy of the state. While ‘the First Amendment severely circumscribes the role that civil courts may play in resolving [religious] disputes,’ a State may adopt ... [a] ‘neutral principles of law’ approach, which ‘contemplates the application of objective, well-established principles of secular law to the dispute,’ has been found to be ‘consistent with constitutional limitations.’ This approach permits ‘judicial involvement to the extent that it can be accomplished in purely secular terms.’” “No strong public policy would be violated by the recognition, entry, or enforcement of the foreign judgment upholding the Mahr agreement.”

This too makes sense to me here. Whatever problems there might be with American courts’ enforcing mahrs that are too vague, and that require interpretation of religious law to fill in the blanks seems absent here. American courts need merely enforce the foreign decree, something they can do without interpreting religious law. And even if UAE courts entered the decree based on their interpretation of the mahr using religious law, I don’t think that’s a problem (at least so long as the substantive terms of the decree aren’t contrary to public policy).

c. The court adhered to the UAE order awarding custody to S.B.

This, I think, might potentially be problematic in some cases. According to the court, “The decision from the Court of First Instance noted that the mother usually has the right to custody of the children unless proven otherwise. The defendant made no showing to refute the custody award to the plaintiff.” This suggests that UAE law is sex-discriminatory. That’s not shocking, I think, given that this was the formal rule in the U.S. up until about the 1970s, and apparently still remains the law (though as a presumption rather than as a firm rule) in Mississippi.

But I suspect that it is indeed contrary to modern American equal protection doctrine, and in particular to the public policy of New York. (The court suggests the father didn’t raise this challenge — “[n]either party alleges that any of the child custody laws of the UAE violate fundamental principles of human rights.” But in the very next sentence the court says, “[n]or does this Court find any such violation,” which suggests the court thinks there’s no federal or New York “human rights” difficulty with such a sex-based rule, a conclusion that I think is mistaken.)

Nonetheless, given the facts of the case — both the facts surrounding the father’s attack on the mother, and the judge’s retelling of the father’s later apparent shenanigans — it seems likely the mother would have prevailed on the custody issue even if the court had decided the custody question anew, by applying a sex-neutral best-interests standard.

In any case, this struck me as an interesting case, and I thought I’d pass it along; I’d love to hear what others, especially those familiar with New York family law, have to say about this.

Soleimani v. Soleimani (Kan. Dist. Ct., Johnson Cty., No. 11CV4668, Aug. 28, 2012) is a very interesting decision on enforcing Muslim premarital agreements in American courts. (For more interesting recent cases on this, see here and here.) The decision is long and detailed, and I can’t do it full justice, but here are some excerpts. First, the facts:

After 30 years of marriage [during all but the first year of which they lived in the U.S.], Faramarz (“Fred”) Soleimani, petitioner, known as a local restauranteur, sought and obtained a divorce from his wife of thirty years, Zohreh Bahmani, on February 19, 2008. Immediately prior to this divorce action, [the husband] had engaged in an internet relationship with respondent Elham Moghadam, an Iranian ... woman twenty-four years younger than him. Pursuant to Iranian and Islamic customs, [the husband] undertook to transfer over $116,000 in premarital funds to her, beginning in November of 2006, culminating in an Iranian marriage contract-signing ceremony on July 19, 2009.... [T]he new couple traveled to the United States, following the execution of necessary visas and other related paperwork so that [the wife] could reside here. A Johnson County judge conducted a separate ceremony August 19, 2009.

The new couple seemed very happy and Mr. Soleimani, by all accounts, was devoted to his new wife, and she to him. He even had her name tatooed to his chest.

Less than two years later, he filed for divorce on June 1, 2011.... [There were] allegations of domestic violence, rape, a petition for protection from abuse which [the wife] filed in Case No. 11CV6179, (granted and finalized on February 3, 2012), and a separate action, alleging a marital tort case, alleging assault and battery, and repeating many of the allegations from the abuse case. That matter was dismissed on June 21, 2012, Doc. 22 in Case No. 11 CV7007, because [the wife] did not want to proceed without completion of a pending police investigation....

Since the domestic violence that has been alleged to have occurred, [the wife] has been living at a domestic violence shelter and has obtained no employment. [the husband] has been unemployed with the exception of his working for his ex-wife in exchange for living expenses. At 60 years old, [the husband] is bankrupt, according to his counsel. According to his ex-wife, finding employment in the restaurant industry will be difficult for him....

Under Iranian/Islamic custom and ... a ... permanent marriage contract can be reached by which [M]uslim couples reach a mahr agreement. In this instance, the parties signed a mahr agreement and [the wife] contends that because of the divorce, she can demand the payment of 1,354 gold quare (coins valued at $500 apiece or the equivalent of $677,000), from [the husband], which has been deferred while married....

A legal wrinkle:

House Substitute for Senate Bill No. 79 [passed unanimously by the Kansas House and in a 33-3 vote in the Kansas Senate] ... preclude[s] 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). This act went into effect on July 1, 2012, and has been widely viewed as precluding courts from applying Shari’a law, although it does not mention the same....

Now Kansas law generally allows premarital agreements, unless they (a) “violat[e] public policy” or (b) fail to provide “inadequate disclosure” and are “unconscionable.” And the ex-husband “has not claimed he was pressured into signing a mahr agreement or that the mahr amount was too high.” “[M]ahr amounts can be determined by the bride’s relative worth in relation to other females in the family, her beauty, age, virginity, etc. In this instance, [the husband] was apparently satisfied that [the wife] justified the rather large mahr amount because he has not challenged the same.”

But the court ultimately decided not to enforce the mahr, and instead imposed, as a property settlement, that the ex-husband may “retain, for the most part, premarital property he possessed, after conferring the equivalent of $116,000 in gifts on [the wife] before any legitimate marriage had occurred.” (The ex-husband was also required to provide spousal maintenance of $692/month for 24 months.) And the court gave various reasons, some more factually specific to this case and some more general:

1. The court concluded that the mahr wasn’t sufficiently proven. “No competent English translation of the actual Farsi document that was introduced and admitted, was ever provided. There was limited testimony about the terms of the mahr agreement but not all of its terms and conditions.... The Court rejects [the parties’ conflicting testimony about the interpretation of some of the key terms] because it assumes the contract is ambiguous, a determination the Court cannot make without a complete understanding of the agreement.” If this were all that the court relied on, the case wouldn’t be particularly noteworthy.

2. But even if the supposed “Official Translation” of the agreement had been admissible, the court says, it still wouldn’t be enforceable. One reason was that the provision “would function as a penalty” based on fault — since the mahr seemed to provide for fault-based payment — contrary to Kansas’s no-fault approach to divorce. A related reason seemed to be that the high amount would unduly encourage divorce by the wife, something the judge said was contrary to Kansas public policy (citing two California cases to that effect).

3. Another reason, though, was more focused on the religious origins of the agreement:

Another cautionary concern in enforcing a mahr agreement is that they stem from jurisdictions that do not separate church and state, and may, in fact, embed discrimination through religious doctrine. This, in turn, creates an obvious tension between the Establishment and Equal Protection Clauses under the federal constitution [and similar state provisions] ....

[Under Islamic law, w]ives have no right to pronounce the talaq [which would cause a divorce]. Pathan, supra, part 2, section 13; Islamic “Purse Strings,” supra at 123. This distinction is arbitrary and invidious. To accord comity to a system that denies equal protection would ignore the rights of citizens and persons under the protection of Michigan’s laws.

Tarikonda v. Pinjari, 2009 WL 930007, *3 (Mich. Ct. App. April 7, 2009) (noting basic denial of due process in Indian divorce under [Muslim] act where husband’s invocation of triple talaq permits summary divorce by stating “I divorce thee,” three times). Perpetuating such discrimination under the guise of judicial sensitivity to Establishment Clause prohibitions would, in effect, abdicate the judiciary’s overall constitutional role to protect such fundamental rights, a concern that presumably [led] to the recently-enacted House Substitute for Senate Bill No. 79, 2012 Kan. Sess. Laws, p. 1089, § 4, which provides:

A contract or contractual provision, if capable of segregation, which provides for the choice of foreign law, legal code or system to govern some or all of the disputes between the parties adjudicated by a court of law or by an arbitration panel arising from the contract mutually agreed upon shall violate the public policy of this state and be void and unenforceable if the foreign law, legal code or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.

(Emphasis added.) ... Thus, if a premarital agreement in the context of KUUPA, was the product of a legal system which is obnoxious to equal rights based on gender, a court could not become a proxy to perpetuating such discrimination....

[The wife]‘s counsel has argued ..., that the right to mahr is severable and independent of any other obligations in the marriage contract.... [But t]hat cannot happen based on the record here [referring back to the court’s concern 1, about the lack of admissible evidence about the precise terms of the agreement]....

Even assuming this Court could interpret the contract, it would then be put in the dilemma of fashioning a remedy under a contract that clearly emanates from a legal code that may be antithetical to Kansas law. To suggest the mahr obligation is neutrally severable from its religious context is not apparent. Such flawed reasoning was utilized in Chaudry v. Chaudry, 388 A.2d 1000, 1006 (N.J. Ct. App. 1978), to justify upholding a premarital contract derived from Pakistani law, on choice of law grounds, rather than on public policy grounds. The result was judicial adoption of Pakistani law that inherently accords women no marital property rights. Oman, How to Judge Shari’a Contracts: A Guide to Islamc Marriage Agreements in American Courts, 2011 Utah L. Rev. 287, 314 (2011) (“In other words, under Pakistani law, the limitation on the wife’s rights arose not because she bargained those rights away, but from the fact that there was no marital property under Pakistani law upon which she might have a claim.”)

4. A third, related, reason had to do with the perceived difficulty with implementing the party’s true understanding of the contract without interpreting religious law, something that secular American courts can’t do:

[M]ahr agreements ... are “too short on operative details, definitions, and explicit requests to have their terms represent an entire remedy at law in a civil courtroom.” See Lindsey E. Blenkhorn, Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women, 76 S. Cal. L. Rev. 189, 210 n.5 (2002). Parol evidence [i.e., evidence about the party’s likely intentions] is almost always required in such cases because the mahr is fundamental to Islamic marriage custom and, therefore, ill-defined, leaving some Islamic courts to infer a mahr amount, if not to provided, to reach a judicial determination of a bride’s worth, which, in turn, may be inferred “according to other females in the bride’s family, her own beauty, her age, or her virginity.” Id. Such concepts, however, suggest women are, comparatively-speaking, chattel, not human beings. This entire valuation process is contrary to American jurisprudence even if a Western court could somehow divine a purpose for in the mahr amount for anticipated spousal support, as opposed to simply divining an intangible value for a wife’s cultural value....

With interpretation of a mahr agreement drawn under the “pertinence of the Islamic shadow behind which husband and wife negotiate, bargain, and determine mahr and its amount, courts have paradoxically refused an appreciation of contract law that would account for the parties’ particular, peculiar, private ordering regime.” Sizemore, Enforcing Islamic Mahr Agreements: The American Judge’s Interpretational Dilemma, 18 Geo. Mason L. Rev. 1085, 1099 (2011) (quoting Pascale Fournier, Flirting with God in Western Secular Courts: Mahr in the West, 24 Int’l J.L. Pol’y & Fam. 67, 69 (2010)).

5. Finally, the court suggested that a mahr might not “qualif[y] as a prenuptial agreement” at all, quoting the Sizemore article:

In other jurisdictions, courts classify the mahr agreement as a prenuptial contract and then proceed to void the mahr agreement for failure to meet the state’s statutory standards for prenuptials. For example, the Uniform Premarital Agreement Act, adopted by 26 states, provides that premarital agreements must be conscionable, entered into voluntarily, and executed only after both parties fully disclose their financial assets. Some states also require that independent legal counsel represent each party or that parties expressly waive representation. Most mahr agreements do not meet these requirements, and so, if treated as a prenuptial, many courts refuse to enforce the contracts.

Each voided mahr agreement establishes the misleading precedent that mahr agreements are equivalent to prenuptial contracts, when, in fact, the two are conceptually distinct. Indeed, the mahr developed for the sole benefit of the wife, as a way to ease an inequitable marriage custom and prevent financial destitution. In contrast, American prenuptial contracts formed to protect the economically superior party from sharing assets with the economically inferior party upon divorce. Thus, the mahr and the prenuptial contract developed to protect different parties and accomplish disparate goals.

Also dissimilar to prenuptials, mahr negotiations do not represent [an] attempt to bargain around default divorce law. When forming marital contracts in their home countries, Muslim parties most likely did not anticipate litigating in American courts and confronting state equitable division or community property laws. In Islamic tradition, each spouse retains their own assets as separate property during the marriage, and so marital or community property is foreign to Islam. And, finally, prenuptials represent the final financial agreement upon divorce, but Muslim couples may not have intended the mahr agreement to represent the exclusive post-divorce settlement because, under some schools of thought, the woman is entitled to alimony separate from her mahr.

Hence, the mahr agreement’s vagueness creates a judicial guessing game that allows non-Muslim judges to falsely equivocate the mahr agreement with a prenuptial contract that preempts equitable division laws. One scholar explains that these cases have “created a serious warping of American judicial understanding of Islamic law as well as a hindrance to providing justice to US Muslim litigants.” Thus, this insensitive use of parol evidence creates deceptive precedent that frustrates the proper enforcement of mahr agreements.

“In disregarding the mahr agreement in the case at bar,” the court stated, “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. See, e.g., In Re Marriage of Shaban, 105 Cal. Rptr. 2d 863, 865-67 (Calif. Ct. App. 2001) (husband argued for enforcement of an equivalent $30 mahr agreement); and Aleem v. Aleem, 947 A.2d 489, 493 n.5 (Md. 2007) (husband argued for mahr of only $2,500 when, under Maryland law, wife was entitled to at least half of $2 million in marital assets).

My quick and tentative reaction: I think religiously motivated contracts (and wills and trusts) should be interpreted the same as secularly motivated documents, so long as they can be interpreted using neutral principles and without evaluating religious doctrine. That makes sense as a matter of contract law and wills and trusts law, and required by the Free Exercise Clause principle that people ought not be discriminated against based on the religious nature of their practices. See, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah (1993).

Thus, to take the simplest example, imagine a man dies and leaves a will that provides that 2/3 of his property will go to his son and 1/3 to his daughter, and it’s clear that this stems from his understanding of Islamic law, under which sons should get twice the share of daughters. Such a will, it seems to me, must be enforced, even if we think it stems from a sexist religious belief system. People are entitled to be sexist — and religiously motivated — in deciding whom to leave their property to.

On the other hand, if a man leaves a will that provides for division “according to the principles of Shari’a,” courts can’t enforce that, because that requires courts to interpret what Islamic religious law actually calls for, something that they can’t do. (See this post for more.) And if American choice of law principles in some case would normally call for the application of foreign law, and that foreign law calls for sex discrimination, then American courts may properly refuse to implement those foreign legal rules.

Likewise, if someone leaves property in a will to one church rather than another, because he thinks the first church is more orthodox, that will must be enforced by secular courts. On the other hand, if someone provides, “I leave this will to the most orthodox branch of Denomination X” or “I leave this will to this church but only so long as it remains orthodox,” secular courts may not enforce that, since that would call on decisions about religious doctrine. (See, e.g., the cases described here, including Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) and Jones v. Wolf (1979).) And American courts can’t enforce either state law rules or foreign laws that impose such a condition in the absence of a will.

The difference is between (1) interpreting religious law (prohibited by the Establishment Clause) or applying foreign discriminatory rules (likely prohibited by the Equal Protection Clause, and by the new Kansas statute) and, (2) on the other hand, applying a contract or a will according to its secularly ascertainable terms, which is permissible even if the motivation behind the contracting parties’ or testator’s decisions were religious or sexist.

Thus, it seems to me that the court’s concern about the contract’s “emanat[ing] from a legal code that may be antithetical to Kansas law.” Islamic law may have sexist provisions that are not those that Kansas law would impose, and religious doctrines that Kansas law may not try to interpret. But there’s nothing antithetical to Kansas law in enforcing contractual provisions that were animated by the parties’ sexist or religious motivations.

On the other hand, if the court really thinks that the true terms of the contract can’t be ascertained without interpreting religious doctrine — either because the words of the contract just weren’t properly proved, or because the contract is seen as implicitly incorporating religious doctrinal rules that courts can’t ascertain — then refusing to enforce the contract would be proper. Likewise, if the court thinks that the contract violates certain public policy rules independently of its religious motivation (such as a policy rule against imposing fault-based penalty provisions in a premarital agreement), the court should invalidate the contract (or the relevant parts of the contract) just as it would have for a secular agreement.

I blogged below about the “American Law for American Courts” proposal, and its possible effect on foreign judgments entered without a civil jury trial. Here, I wanted to flag a possible problem with this proposal and foreign divorce decrees.

American courts routinely have to decide the marital status of people who came to America from a foreign country, and who got married or divorced or remarried in that country. If Wanda purportedly married Xavier in Elbonia, then purportedly divorced him in Elbonia, and then purportedly married Harold in Elbonia, and ten years later comes to America, the American legal system has to be able to figure out whether Wanda is indeed properly married to Harold. That’s the sort of issue that comes up all the time in immigration law, in divorce law, in wills and trusts law, in tax law, in evidence law, and in many other contexts. To figure that out, it may be necessary to decide whether the earlier Elbonian divorce was valid — which can only be figured out using Elbonian law — or possibly just to give legal effect to the earlier Elbonian divorce.

Now what if the Elbonian legal system doesn’t take the same view of various rights, including equality rights, that we now take? What if, for instance, Elbonian law provides husbands more rights than wives in getting divorces started? Or what if Elbonia — like Israel, Lebanon, India, and other places — provides that family law matters are to be adjudicated under the religious laws of the religious group to which the parties belong, which necessarily involves a form of religious discrimination that would violate First Amendment principles if done in the U.S.? Or what if Elbonian rules of evidence give more weight to men’s testimony or to the testimony of people who belong to certain religions, and those rules had been applied in the divorce?

This might be bad, but it’s the reality under which Elbonian law operates, and Wanda has lived her life in Elbonia based on that reality. She may have remarried based on the effect of the divorce — however unfairly it may have been conducted. She may have gotten certain property in the divorce, perhaps less than she should have gotten, but something that she now views as hers. That’s life on the ground in Elbonia for her.

Now she and Harry come to America, and the question of the validity of her and Harry’s marriage comes up. Maybe Harry brings it up in trying to get his marriage to Wanda annulled (on the theory that the Wanda-Xavier divorce was invalid). Maybe the government brings it up in trying to decide whether Harry is entitled to claim the spousal privilege to refuse to testify against Wanda, or whether Wanda is entitled to certain state tax treatment offered to married people, or in one of many other situations where marital status is relevant. Even if we disapprove of the Elbonian legal system, it seems to me that American courts can’t just categorically ignore the Elbonian divorce.

Yet that seems to be what the “American Law for American Courts” proposal would do, when it provides that,

Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this State and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

Because the divorce decree was entered under a legal system that denied “the same fundamental liberties, rights, and privileges granted under the U.S. ... Constitution[]” — such as equal rights regardless of sex, the First Amendment right not to be treated differently based on religion — the divorce decree is “void,” and thus presumably can’t be considered by American courts. Wanda would thus presumably be treated as still married to Xavier, and not to Harold.

That doesn’t seem to me to make such sense. It might be proper for courts to sometimes ignore the effect of foreign divorces that are based on procedures that American law views as improper — for instance, if they affect the rights of people who were U.S. residents at the time of the divorce, or to the extent they continue to affect child custody rights in some way that we see as improper. But it’s not right for courts to have to categorically ignore the effect of foreign divorces that involve departures from American equality norms.

Yet that seems to be what the “American Law for American Courts” proposal would call for. Perhaps this effect is inadvertent, and maybe courts can avoid it by some sort of creative construction, or liberal use of “putative spouse” doctrines under which (in some states) people can be viewed as married in some situations even if their marriage was technically invalid in some respect. But until that’s made clear, this seems to be a pretty serious potential problem with the proposal.

I’ve blogged quite a bit about why broad bans on the use of foreign law in American courts are improper. But what about narrower limitations, such as the American Laws for American Courts proposal that has been enacted in some form in Arizona, Louisiana, and Tennessee?

I think that particular proposal is less problematic, and some aspects of it might well be sound. For instance, I support laws — such as the recent federal SPEECH Act — that limit domestic enforcement of foreign judgments that are based on speech that would be protected in the U.S. At the same time, it seems to me that there’s one pretty serious potential problem in it.

Briefly, the “American Laws for American Courts” is aimed not at banning all application of foreign law or of religious law — indeed, it might not apply to purely religious law at all, see below — but just to enforcement of foreign judgments or of arbitrations where the decisionmaker

bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

If read to mean that the judgment is unenforceable to the extent it relies on a particular legal rule that “would not grant” American fundamental rights — as opposed to the judgment being unenforceable if it’s based on any legal rule that comes from a legal system in which other rules don’t grant such rights — this is a pretty narrow proposal. Moreover, the proposal does “not apply to a corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States,” and thus won’t cover the bulk of international commercial disputes.

Nonetheless, it seems to me this has one pretty substantial potential problem: Nearly all foreign countries do not provide for a civil jury trial. It’s not completely clear whether the civil jury trial in damages cases is treated as a “fundamental” right under the U.S. Constitution — though it’s not incorporated against the states, and that’s sometimes linked to a right’s supposedly not being fundamental, it sometimes has been labeled by courts as fundamental even though it is applicable only to the federal government. But in any event, the right is secured in all state constitutions, and is labeled “fundamental” by many state courts, including Louisiana courts.

Read literally, this suggests that pretty much all foreign judgments (and possibly all arbitral judgments) entered against individuals — or entered in non-contract cases — would be unenforceable, simply because they were entered without a jury trial. After all, such a judgment does “not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions [i.e., the civil jury trial], including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state” (emphasis added).

That seems bad for international commerce. It also seems unnecessary; while the civil jury trial has a long American history, and plausible arguments in its favor, I don’t think that absence of a civil jury is especially likely to make a trial unfair. Indeed, American law generally doesn’t call for civil juries in injunction cases, restitution cases, family law cases (except in Texas), admiralty cases, and more.

To be sure, the force of this provision, for good or ill, is dramatically limited by paragraph 5, which excludes cases in which the losing party is a business organization that has contracted for the application of foreign law. Still, the seeming the enforcement of foreign non-jury verdicts would be unsound, for instance when there’s a lawsuit against a wealthy American individual, or when there’s a lawsuit against an American company on a tort cause of action rather than a contractual one.

I’m not sure whether this is an intended effect of the proposal; but it seems to me a problem. There is also at least one other potential problem with the proposal, as it bears on divorces; I’ll mention that in a separate post.

Note also that the proposal is limited to the laws of “a jurisdiction,” which suggests a country or state. It thus might well not apply to religious law — whether Sharia, Jewish law, or some other legal system — to the extent that it is applied in an arbitration under that religious law, as opposed to when it’s applied as the law of a foreign country. (I say “might” because one could argue that Sharia or Jewish family law, even applied as solely religious rather than national law under an arbitration agreement, might be treated as the law “of a jurisdiction” because some other countries — even ones quite unrelated to the arbitrators — treat those legal rules as binding.)

Here’s the full text of the proposal:

Continue reading ‘“American Laws for American Courts” and Civil Jury Trials’ »

Whenever I blog about why American courts often should consider foreign law — as in the recent Pakistani Law in U.S. Courts thread — some commenters ask: What if the foreign law is very bad? What if it’s sexist, for instance if it treats men and women differently in issuing divorce decrees? What if it requires that the losing party get his hand chopped off? What if it requires American courts to themselves discriminate, for instance by applying a legal rule that discriminates based on the sex or religion of the parties?

These are important and interesting questions, and they are why American courts do not apply a general rule that they will categorically enforce all foreign judgments or apply all foreign laws, whatever their content. American courts refuse to enforce rules that they see as sufficiently against the “public policy” of the state (or of the U.S. generally). But this doesn’t keep American courts from enforcing other judgments and applying other laws. It’s not an all-or-nothing matter — either you apply all foreign laws (e.g., decide whether immigrants are married based on the law of the place they married, and also chop off people’s hands if foreign law calls for that) or apply no foreign laws.

Contract law offers a helpful analogy (though, as always with an analogy, it’s just an analogy, not an identity). If two parties make a deal, American courts will usually enforce that deal. Sometimes they’ll enforce the deal even through “specific performance,” which is to say ordering the parties to go through with the deal and not just giving money damages. (There are limits on specific performance that are unrelated to the public policy exception, but we’ll set them aside there.) Will they enforce a deal that calls for chopping off a hand? No. Will they enforce a contract to commit a crime? No. Will they enforce a contract that calls for a court to interpret religious doctrine? Almost certainly not. Will they enforce a contract that calls for a court to exclude certain beneficiaries based on race or sex? Probably not. Will they enforce the great bulk of contracts that courts are asked to enforce? Certainly.

So courts do not have all-or-nothing “enforce all contracts” or “enforce no contracts” rules. They have a strong presumption in favor of enforcing contracts using damages awards, and they also enforce some kinds of contracts using specific performance, but they have had to come up over time with often complicated principles about what is enforceable and what isn’t enforceable. Developing and implementing such principles isn’t cost-free — but it’s better for economic and social life, and fairer to the parties, than having all-or-nothing rules.

The same is true for enforcing foreign law. American courts, for instance, generally enforce foreign money judgments, for instance when a plaintiff who won an award in England or Argentina or Saudi Arabia comes to an American court to execute the award against American assets of an American company. That’s vital to the effective functioning of the international economy, and to the competitiveness of American companies, since foreign companies might well be uninclined to do business with American companies if it’s hard to enforce contracts with those companies. They also enforce these judgments even if they were entered without a civil jury trial; though the constitutional right to civil jury trial is protected in federal cases by the Seventh Amendment and in state cases by state constitutional provisions, nearly all foreign countries don’t have jury trials in all or most civil cases, and it would be too burdensome on commerce to refuse to enforce such jury-trial-less judgments.

But American courts won’t enforce such foreign money judgments if they were awarded using procedures that the court considers as sufficiently unfair, for instance if the foreign court lacked jurisdiction over the defendant, or denied defendant any opportunity to be heard. Likewise, American courts won’t enforce (for instance) a foreign judgment based on a foreign libel law that wouldn’t comport with American First Amendment standards. (There’s now a statute related to such libel awards, but some American courts adopted such a rule even before that statute was enacted.) Note, though, that the refusal to apply one law or to enforce one set of judgments from a country (e.g., English libel judgments) doesn’t mean courts will refuse to apply all laws or enforce all judgments from that country.

Likewise, American courts generally look to the law of the place where a marriage or a divorce took place — at least if the parties were living in that place at the time — to determine whether the marriage or divorce is valid. That’s vital to dealing sensibly and fairly with people who come to America from a foreign country, and who should be seen as bringing their familial status with them. Here, it probably makes sense to follow such foreign law even if it embodies some procedural rules that we would consider improper or discriminatory. If, for instance, the law of some country lets men easily divorce their wives, but makes it much harder for women to divorce their husbands, we still have to recognize those foreign divorces: It’s no favor to a divorced woman to render her divorce invalid, and render her second marriage bigamous and therefore void, because other women were denied the ability to initiate divorces. Similarly, American courts tend to accept foreign marriages among first cousins, or even of uncles and nieces, as well as some not-very-underage foreign marriages.

On the other hand, American courts generally don’t recognize polygamous foreign marriages (except for some purposes), and may refuse to recognize certain child custody decrees, or property settlements involving American residents. Courts again refuse to apply all-or-nothing rules, and instead try to come up with sensible lines between what is allowed and what is forbidden — again, much like they do with regard to domestic contracts.

I like clear, simple rules. I often tend to side with those who prefer such rules over those who prefer vaguer standards. But sometimes clear, simple rules — apply all foreign law, apply no foreign law, enforce all contracts, enforce no contracts — just don’t work. Then mushier in-between rules become the most sensible option. As Einstein is sometimes paraphrased,

Everything should be made as simple as possible — but not simpler.

In past discussions, especially about the Oklahoma foreign law ban and about similar proposals in other states, some people have questioned why American courts would want to look at foreign law. Yesterday’s Naseer v. Moghal (Va. Ct. App. Aug. 14, 2012) offers an excellent example. The facts:

On August 1, 2000, wife [Tahira Naseer] married Nasir Mehmood Khan in Pakistan. On June 12, 2001, Khan told wife three times that he divorced her pursuant to Islamic law. In Pakistan, this is considered the religious component to a divorce. Then, the parties have to obtain a legal divorce. Once the husband pronounces the divorce, he gives notice to the local government, known as the Union Council, and the wife receives a copy. The Union Council gives notices to both parties to try to reconcile. After ninety days, if there is no reconciliation between the parties, the Union Council issues a certificate confirming the divorce. In this case, wife and Khan did not give notice to the Union Council to start the process to receive a legal divorce in Pakistan. Wife assumed she was divorced after Khan said that he divorced her three times.

On January 26, 2003, wife and husband [Hamid Moghal] married in Pakistan, and on July 4, 2004, had a subsequent marriage ceremony in Fairfax County, Virginia. Wife did not tell husband that she had been previously married. She indicated on their marriage certificate that this was her first marriage. Husband and wife separated on November 18, 2009.

On December 3, 2009, husband discovered a marriage certificate from wife’s first marriage. He took the document with him on his trip to Pakistan, where he learned that wife never obtained a legal divorce from Khan. The Pakistani authorities issued an arrest warrant for wife and charged her with bigamy. Wife filed a Suit for Declaration in Pakistan, and on July 19, 2011, the Pakistani court finalized the divorce between wife and Khan.

On February 22, 2011, husband filed a complaint for annulment, alleging that wife committed bigamy by marrying husband while she was still legally married to Khan. Wife filed an answer and counterclaim for divorce. On January 17, 2012, the trial court heard evidence and argument from the parties and granted the annulment.

In the process, the trial court heard from experts on Pakistani law, accepting the testimony of husband’s expert — a Pakistani lawyer — who “testified that in order to be divorced in Pakistan, a person had to obtain a legal divorce, not just a religious divorce” and rejecting the testimony of wife’s expert (not a Pakistain lawyer) who “testified that based on Islamic law, wife was divorced and that Islamic law controls.” The Virginia Court of Appeals deferred to the trial court’s judgment about the experts’ credibility, and concluded:

“A marriage entered into prior to the dissolution of an earlier marriage of one of the parties” is prohibited. [Va.] Code § 20–38.1(1). ["]When a marriage is alleged to be void or voidable for any of the causes mentioned in §§ 20–13, 20–38.1, 20–45.1 or by virtue of fraud or duress, either party may institute a suit for annulling the same; and upon proof of the nullity of the marriage, it shall be decreed void by a decree of annulment.["] Code § 20–89.1(a). The burden of proof in an annulment case based on bigamy is “clear and convincing.” Rahnema v. Rahnema, 47 Va.App. 645, 665, 626 S.E.2d 448, 458 (2006)....

The trial court found that the testimony of husband and his witnesses was more credible than the testimony of wife and her witnesses.... Husband carried his burden of clear and convincing evidence to prove that wife had not obtained a legal divorce from Khan before she married husband. Therefore, the marriage between husband and wife was bigamous. The trial court did not err in granting husband an annulment.

Note what happened here:

1. Under Virginia law, if A marries C while A is still married to B, the A-C marriage is void, and C can get it annulled.

2. Virginia courts naturally decide annulment questions using Virginia law.

3. But many Virginians came to Virginia from other places, including other countries. Virginia law therefore provides that, for purposes of Virginia law, whether an out-of-state marriage or divorce is valid is determined by the law of the place where the marriage or divorce took place (at least when that place was also the place of residence of the parties). To my knowledge, all American states apply a similar “choice of law” rule to marriage and divorce questions.

And that’s because such a rule is sensible: If you need to find out whether someone who had lived in Pakistan (or Germany or Canada) was properly married or divorced in Pakistan (or Germany or Canada), you naturally can’t expect them to have gone through the proper Virginia formalities at the time — perhaps when they weren’t even planning to move to Virginia. The best you can do is figure out whether they were properly married or divorced under the law of the place where the marriage or divorce happened.

To be sure, some out-of-state marriages and divorces might be contrary to Virginia public policy, and won’t be recognized in Virginia even if they are recognized elsewhere. Polygamous marriages probably qualify. But that’s the exception, not the rule.

4. So to determine, under Virginia law, whether the Naseer-Moghal marriage was valid, the Virginia judges had to decide whether Naseer was still married at the time, which required them to determine whether Naseer had divorced Khan (whom she had undoubtedly married) under the law of Pakistan. That’s not because Pakistani law is somehow being forced on Virginia. Rather, it’s because Virginia chooses to apply such law, in an attempt to better manage the lives of its residents, who come from all over the world.

5. Naturally, Virginia judges might not know much about Pakistani law, which is why the parties call experts on the subject, and the trial judge decides whom to believe. (In some situations, the judge could also consult treatises on the matter.) This is an imperfect process, but it’s generally reliable enough.

6. In this instance, the judge concluded that Pakistani law imposed requirements beyond those required by religious law. But Virginia law calls for application of the foreign law in such a situation, whether the foreign law is based partly on religious law, entirely on religious law, or not at all on religious law. If it turns out in a later case that under the law of some other country, a religious ceremony (say, one conducted consistently with Sharia law as understood within that country) suffices to produce a legally recognized divorce — or, in a different case, a religious ceremony suffices to produce a legally recognized marriage — then Virginia judges would follow that law, and call experts to determine just what religious ceremonies suffice and what effect they have.

And this wouldn’t be because Virginia was being governed by Sharia, or because American Muslims are entitled to have their legal rights adjudicated under Sharia. Rather, it’s because Virginia law calls for the application of the law of the jurisdiction where the marriage or divorce took place, whatever the law might be — again, except in rare situations where the law is contrary to Virginia public policy.

Perfectly normal behavior for American courts, and in my view perfectly sound behavior. American courts should apply American law, but sometimes American law calls for the application of foreign law, and then American courts should apply that. Yet under the Oklahoma constitutional amendment, Oklahoma courts would have been barred from considering Pakistani law in this situation, had the amendment not been enjoined on Establishment Clause grounds. Likewise, under the proposed Arizona statute that I cited at the beginning of this post, Arizona courts would have been barred from doing the same.

The opinion is Murray v. Geithner (E.D. Mich., decided today). I think the result is quite right, for reasons I mentioned when the lawsuit was first filed, and when the court rejected the government’s motion to dismiss. Here’s my reasoning from the latter of those posts (though it’s not quite the reasoning given by the court):

[T]he [plaintiff's] theory is apparently that the government may not invest in any company that, in part of its operations, provides products that are tailored to a particular religious faith, and that may be accompanied by donations to religious charities. But lots of companies do this, for the simple reason that religious consumers have their religious tastes such as consumers have other ethical or esthetic tastes.

For instance, a food processing company might have a division that produces kosher products and donates some money to Jewish-specific charities (as a way of better wooing Jewish buyers). An investment company might seek to attract conservative Christian investors by offering a fund that doesn’t invest in (say) hospital chains that perform abortions, and by donating some share of its profits to religious causes. Other companies might provide funds that don’t invest in munitions manufacturers, to satisfy the desires of Quaker investors. A store might sell, among other products, religiously significant garments or religious symbols. A bookstore might sell religious books alongside other books.

Under the plaintiff['s] theory, either Islam is subject to special constitutional constraints, or — once that constitutionally forbidden legal rule is rejected — all of these companies would somehow be forbidden as targets of government investments. The government couldn’t bail them out. It presumably couldn’t invest public employee retirement funds in them. It couldn’t sell religious books alongside other books in public university bookstores, or serve kosher food alongside other food in public university cafeterias.

Continue reading ‘Court Rejects Claim that AIG’s Use of Sharia-Compliant Financing Violates the Establishment Clause’ »

That’s the issue lurking in In re Aramco Servs. Co., now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramco, the Saudi government’s oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco’s Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslims or Saudi citizens [UPDATE: I originally erroneously said "Muslim Saudi citizens"; I've just corrected it]. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis.

The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn’t reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court — a government entity — from discriminating based on religion this way, even pursuant to a party agreement?

I’m inclined to say that the court indeed may not choose arbitrators based on their religion, even pursuant to the agreement. First, that would be discrimination based on religion by a court; nor can one say that any rights against such discrimination were waived by the contract, since the discrimination is against nonparties to the contract (the arbitrators). Second, it might impermissibly entangle the court with religion (in violation of the Establishment Clause nonentanglement doctrine, which is separate from the First Amendment nondiscrimination doctrine), since it would require the court to decide who is really a Muslim; I say “might” because it’s not settled whether this second objection would apply when there’s no dispute about whether a person is a Muslim.

There is an interesting analogy, though, that might cut the other way for some people: Wills that provide that property be distributed only to descendants who continue to adhere to a particular religion, or who are married to people in that religion. (For an example of a case dealing with this, and refusing to enforce such a will, though on a 2-1 vote, see here.) There too a court is asked to select people based on their religions, pursuant to a nongovernmental entity’s choice; and though the selected person in the will case gets the property, rather than choosing who gets the property (as in the arbitrator selection scenario), I don’t think that this is a material difference. I think that applying religion-discriminatory provisions in a will should be unconstitutional when done by a court, but my sense is that many others might disagree with me, precisely because the religious discrimination stems from a private party’s initial decision (even if it’s implemented by a court) and not a government entity’s initial decision.

If the parties want arbitration by Muslims (or, again, Orthodox Jewish rabbis or Catholic priests or whoever else), I don’t think there’s any public policy objection to such a provision, or to judicial enforcement of the arbitral result. (I set aside for now possible concerns about discrimination based on sex or religion in the consideration of evidence by arbitral tribunal applying rules calling for such discrimination, concerns that might not arise in particular arbitrations, and that might in any event not be seen as dispositive.) But the arbitrators would have to be chosen by some entity designated in the contract, an entity that is not an American government actor. Likewise, in the will scenario, the testator could certainly himself choose beneficiaries based on his view of their religiosity, and can also delegate this decision to a private person or organization appointed by a will, such as a trustee or someone vested with a power of appointment.

I also don’t think there’s any problem with enforcing a requirement that the arbitrators be Saudi citizens, even if that in practice means they’re going to be Muslims. Discrimination by American government agencies based on citizenship status is often permitted — absent some federal preemption of state practices in this regard, preemption that I doubt would be found here — and checking someone’s citizenship status does not raise the entanglement-with-religion concerns that I mentioned. But discrimination by American government agencies based on religion is almost never permitted, and the same is true for decisions by government agencies about who is a Muslim (outside a very few contexts where the no-entanglement rules are broadly relaxed, such as for prison chaplains and military chaplains).

In Pucci v. Nineteenth District Court (6th Cir. Dec. 16), plaintiff Julie Pucci was dismissed from her job as deputy court administrator. She alleges that she was dismissed partly in retaliation for her complaining about one judge’s “practice of interjecting his personal religious beliefs into judicial proceedings and the business of the court.” The judge was later appointed chief judge, and dismissed her. Another factor in the dismissal was allegedly Pucci’s living with a different judge, with whom the chief judge had a good deal of friction. And another factor, according to the documents I’ve seen, may have been the chief judge’s moral disapproval of Pucci’s living with the other judge without their being married.

In any case, here is the Sixth Circuit’s summary of the complaints about the judge (though note that I could see no indication of whether any government official had definitively decided whether the Ramadan incident had happened as alleged):

Pucci was not alone in complaining. Sharon Langen, the clerk of the court, also testified that she complained to the [State Court Administrative Officer], and another court employee filed a complaint with the state judicial tenure commission. Foran stated that, during his brief ten-month tenure as chief district judge, he received upwards of fifteen complaints from local attorneys “about Judge Somers interjecting his religious beliefs from the bench or imposing sentences based on religion.” [Citing the district court decision.] The record provides several examples:

Judge Somers used official court stationary on three separate occasions to send official correspondence affixing a quote from a biblical passage[;] ... [according to then-Chief Judge Foran's summary of a lawyer complaint,] a “Muslim boy got a stiffer sentence because of the fact that whatever offense he had, it happened during ... Ramadan[]”; [o]thers complained that Judge Somers lectured defendants about marijuana, declaring that it was the devil’s weed or Satan’s surge, and that he would ask litigants in court if they go to church.

Id. In response, the regional court administrator instructed Somers to stop using court stationary to send religious messages.

What struck me as interesting is that the alleged Ramadan-related action — which would be clearly unconstitutional religious discrimination if it happened as described — does not seem to have been a reflection of any Islamist perspective of the judge’s part. Rather, the allegations describe what one might think of as ecumenical pro-religiosity, which may include specially punishing religious people for violating the dictates of their religions as well as, in other circumstances, specially favoring religious people.

It reminded me of McLemore v. McLemore, a 2000 Mississippi Supreme Court case in which the court ordered the parents to take a child to church, and responded (in my view incorrectly) to an Establishment Clause argument by stressing that “church” was used generically, and that any religious worship, Christian or not, would has sufficed. Likewise, Michigan trial courts often favor the more religious parent in child custody cases (see, e.g., the list of cases at PDF pp. 92-93 of my Parent-Child Speech and Child Custody Speech Restrictions article), though without any ostensible preference for this religion or that; still unconstitutional, I think, but reflective of a broad pro-religion mindset.

In any event, I thought I’d note this, though I should stress again that the Ramadan story is just a lawyer’s allegation; I know of no confirmation or rejection of the story. Thanks to Religion Clause for the pointer.

UPDATE: According to the Complaint, the biblical passage included on the judge’s official correspondence was “and what does the Lord require of you but to do justice to love kindness, and to walk humbly with your God” (Micah 6:8).

So reads an Atlas Shrugs headline, discussing this Justice Department press release:

The Justice Department today announced it has filed a lawsuit against Berkeley School District, Berkeley, Ill., alleging that the school district violated Title VII of the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of Safoorah Khan, a Muslim teacher at McArthur Middle School.

The government’s complaint, filed in the U.S. District Court for the Northern District of Illinois in Chicago, alleges that Ms. Khan requested an unpaid leave of absence in December 2008 to perform Hajj, a pilgrimage required by her religion. According to the complaint, Berkeley School District denied Ms. Khan’s request because the purpose of her leave was not related to her professional duties nor was it leave for any of the specific purposes set forth in the Professional Negotiations Agreement between the district and the teachers’ union. The United States further alleges that, because Berkeley School District denied her a religious accommodation, the district compelled Ms. Khan to choose between her job and her religious beliefs, and thus forced her discharge.

The lawsuit is based on a charge of discrimination filed by Ms. Khan with the Chicago District Office of the Equal Employment Opportunity Commission (EEOC).... In the lawsuit, the United States seeks an order requiring Berkeley School District to adopt a policy designed to reasonably accommodate the religious observances, practices and beliefs of employees and prospective employees. In addition, the United States seeks back pay, compensatory damages and reinstatement for Ms. Khan....

This is the first lawsuit brought by the Department of Justice as a result of a pilot project designed to ensure vigorous enforcement of Title VII against state and local governmental employers by enhancing cooperation between the EEOC and the Civil Rights Division.

Some thoughts (built on an article I wrote in 2007 for National Review Online):

1. The federal government is of course enforcing American law here — the 1972 amendments to Title VII of the Civil Rights Acts of 1964. With these amendments, Congress expressly required employers to give religious employees special exemptions from generally applicable job requirements, if (a) the requirements interfere with an employee’s sincerely felt religious obligations and (b) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison (1977).

This is called the “reasonable accommodation” requirement, and under this requirement employers are indeed sometimes required to give employees days off for their religious holidays. If the burden of accommodating the requests — the burden on the employer or on other employees — would be too great, an accommodation is not required. The duty is one of reasonable accommodation, not of accommodation, period. But in some situations courts have found that, given the particular job requirements, and the alternate mechanisms the employer has for getting the job done, an employer might indeed have to accommodate requests for days off.

Now one can certainly object to this rule, for instance on efficiency grounds, freedom of contract grounds, or equality grounds. (As to the latter objection, these rules give religious employees rights that other employees don’t have; and even though the EEOC and most lower courts have agreed that this applies not just to religious objectors but also people who have “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views,” 29 C.F.R. § 1605.1, the law still prefers such religious or conscientious objectors over people who (say) want Saturdays off just to relax or to be with their families. Plus an exemption for religious objectors

But the fact remains that this is the law of the land, which the federal government — usually the EEOC, but sometimes the Justice Department itself — is supposed to enforce. As I said, the government is enforcing an American statute here. And the fact that the employees are Muslims, and their religious beliefs thus stem from Sharia law rather than from their understanding of Jewish law or of Christian commandments, doesn’t strip them of their rights under that statute.

2. What’s more, it turns out that requests for weeks-long leaves (as opposed to the more common Sabbatarian requests to have each Saturday and Friday night off) have been made before by members of another religious group — and supported by the U.S. government. That group is the Worldwide Church of God, the adherents of which apparently feel obligated to take eight to ten days off every year to observe a holiday (the Feast of Tabernacles).

The EEOC and the Justice Department have on several occasions sued on behalf of Worldwide Church of God members, claiming they have a right to religious accommodation.

Continue reading ‘“Department of Justice Enforces the Sharia: Sues Illinois School District for Muslim Teacher Hajj”’ »

That’s the title of a Western Word Radio online radio program, which will be streaming live from 1:30 to 3:30 pm Eastern tomorrow (Sunday, December 12), and will available on the site after that. The details are available here, but the short summary is that the panel seems to be large and quite balanced:

Eugene Volokh (UCLA Law School); Kent [Greenawalt] (Columbia University) : Michael Helfand (Pepperdine University); David Yerushalmi (Center for Security Policy); Marion Boyd (former Attorney General Ontario, Canada); Douglas Murray ( Center for Social Cohesion, U.K.); Robin Shepherd ( Henry Jackson Society, U.K.); Christine Brim (Center for Security Policy, Washington D.C.); Lewis Moore, (Oklahoma State Assembly), Robert Spencer (Jihad Watch ) Anne Elisabeth Moutet (Jean Jacques Rousseau Institute, France), Patrick Sookhdeo, and Shaykh Faiz-ul-Aqtab Siddiqi

I much look forward to participating, and to hearing what my fellow panelists — left, right, and otherwise — have to say.

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.

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 really make sense? Sure, if the American government decided to play hardball, in order to get Iran to recognize American marriages and divorces, it might threaten Iran with nonrecognition of Iranian marriages and divorces. But it’s not clear that this would budge Iran much, and it’s not clear that trying it is indeed such a good foreign policy move, especially given the collateral damage it would cause in the meantime to Americans.

More broadly, it’s the sort of foreign policy move that should be done by the federal government’s executive branch, not by state courts. State courts’ job is not to exert international pressure. Their job is to maintain a sensible, fair, and efficient legal system for their citizens; and refusing to recognize foreign marriages and divorces, and hurting Americans in the process does not serve those goals.

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 — but is now regretfully reconciled to the situation, perhaps because she is now pregnant and doesn’t want to be out on her own, or perhaps because she fears that she would be condemned by her family and community if she left. What should the law do about that?

I suspect that some criminal punishment for the original coercion could be provided for, even if the coercion was outside the U.S., at least if one of the coercers was a U.S. resident (though of course all that assumes that somehow the coercion comes to light). And if one invalidates the marriage on the grounds that it was coerced, then one might be able to prosecute the husband for statutory rape, assuming the statute of limitation hasn’t run on that.

But again, this would happen only at considerable practical expense to the woman. And in any event, it would only make sense if (1) there’s actual reason to think that the marriage was coerced, and (2) the rule applies to coerced marriages without regard to whether they were ratified by a foreign secular legal system or a foreign religious legal system. Invalidating noncoerced marriages, even underage marriages in a context where such marriages are generally recognized by U.S. law, simply because it would incidentally facilitate statutory rape prosecutions as to coerced marriages, strikes me as neither practically sensible nor just. And it is also neither practically sensible nor fair to invalidate marriages that were licensed under an Islamic legal system but not otherwise identical marriages licensed under a secular legal system.