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Maryland's Highest Court Refuses to Recognize Pakistani (Islamic Law) Divorce:

The case, decided yesterday, is Aleem v. Aleem. The court reasoned that, while foreign divorces are generally recognized unless they violate the state's public policy, the sex-discriminatory nature of Islamic divorce law does violate Maryland public policy, at least where the parties are Maryland residents.

"If the Pakistani marriage contract is silent, [footnote: The places in the "contract" where a division of property would normally appear were simply left blank in the case at bar.] Pakistani law does not recognize marital property. If a pre-marital or post-marital agreement in Maryland is silent with respect to marital property, those rights are recognized by Maryland law.... In other words, the 'default' under Pakistani law is that Wife has no rights to property titled in Husband's name, while the 'default' under Maryland law is that the wife has marital property rights in property titled in the husband's name. We hold that this conflict is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy."

The talaq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state and we decline to give talaq, as it is presented in this case, any comity. The Pakistani statutes providing that property owned by the parties to a marriage, follows title upon the dissolution of the marriage unless there are agreements otherwise, conflicts with the laws of this State where, in the absence of valid agreements otherwise or in the absence of waiver, marital property is subject to fair and equitable division. Thus the Pakistani statutes are wholly in conflict with the public policy of this State as expressed in our statutes and we shall afford no comity to those Pakistani statutes.

Additionally, a procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife, perform "I divorce thee ..." three times [which is what happened in this case -EV] and thus summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife. Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.

Earlier, the court also reasoned that "the enforceability of a foreign talaq divorce provision, such as that presented here, in the courts of Maryland, where only the male, i.e., husband, has an independent right to utilize talaq and the wife may utilize it only with the husband's permission, is contrary to Maryland's constitutional provisions [barring sex discrimination] and thus is contrary to the 'public policy' of Maryland." Just as Maryland courts refuse to enforce English libel law judgments, because those are arrived at without regard to American free speech principles, so the court refused to enforce the Pakistani divorce.

Note that this does not preclude the enforcement of prenuptial contracts that expressly limit marital property rights — the court expressly speaks of the default Maryland rule applicable "[i]f a pre-marital or post-marital agreement in Maryland is silent with respect to marital property." (There might be some minimum rights that a spouse might have under Maryland law notwithstanding any express prenuptial agreements, but the court clearly contemplates that a good deal of one's marital property rights can indeed be waived through such an agreement.) It also doesn't speak to what happens if the prenuptial contract doesn't give a specific limitation, but rather states, "in the event of a divorce, we agree that the property shall be divided by applying Pakistani law" or "... by applying Islamic law" or "... under a decision of an arbitral tribunal convened through [name of group]." Here the contract was entirely silent, so the court had no occasion to decide the matter.

My view is that the court decision is quite right on these facts, given the absence of any express agreement about marital property division. I'm inclined to say that if the parties had agreed to an uneven property division, or to a property division pursuant to sex-discriminatory rules, that agreement should be enforceable (again, subject to whatever minimum support requirement state law generally imposes, and setting aside child support issues, which are a matter of duty to the child and thus can't be waived by contract with the spouse). The wife was only 18 when she married the husband, but she was an adult, and should thus be held responsible for her contractual decisions, even if they are made under social or family pressure. But of course I'm aware that others may disagree, and may take a more paternalistic view with regard to contractual enforcement; and in any event in this case, there was no express contract to the first instance.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. Prof. Friedman also links to this Baltimore Sun article, which has more on the case, including commentary from Islamic law scholars.

Bill Poser (mail) (www):
In this case the couple were residents of Maryland so it is clear that the court could apply Maryland law and public policy. Is it clear at what remove a US court would consider the divorce invalid? Suppose, for example, that the husband obtained the divorce while both he and his wife were residents of Pakistan and that the two later moved, separately, to Maryland, where the (ex-)wife then sued her (ex-)husband for a share of what had been the marital estate. By the public policy argument, the Maryland courts should consider them still married and allow her to petition for divorce and a property settlement. If not, what prevents this?
5.7.2008 7:02pm
tvk:
I agree that the result is quite right on its facts, but the language here is enormously overbroad. I don't think that a default rule that marital property is not commingled absent express agreement is so outrageously foreign. By the court's reasoning, if Delaware adopted this rule then Maryland would refuse to recognize a Delaware divorce.

What really seems to be driving this here is the sex discrimination aspect where the husband has the unilateral right to divorce and leave the wife in the cold. But this case is one that could have enormous and unanticipated consequences later. Hard cases, as they say, make bad law.
5.7.2008 7:10pm
Jay:
"Hard cases, as they say, make bad law."

Isn't the problem here (assuming your concern is well-founded) that easy cases make bad law?
5.7.2008 7:49pm
Smokey:
tvk:

Then what's your solution? I'm not trying to be snarky, but you can't be saying the Islamic man can divorce his wife this way, are you?

The basic problem with Islam always seems to be the same: we are expected to conform to their culture when they're here, not vice-versa.
5.7.2008 8:27pm
Dave N (mail):
The Baltimore Sun article made it clear that the Muslim scholars who were asked to comment agreed with the state appellate court:
Experts in Islamic law and religion who are based in the U.S. said they agreed with the court's ruling. Abdullahi An-Na'im, a Muslim scholar and law professor at Emory University in Atlanta, said "there can only be one law of the land."

An-Na'im, who wrote Islam and the Secular State: Negotiating the Future of Shari'a, said that "if Muslims wish to influence what the law of the state says, they must do so through the normal political process and in accordance with civic discourse that is equally open for debate by all citizens, and not on the basis of religious beliefs."

* * *

Muneer Fareed, secretary-general of the Islamic Society of North America, said that if Aleem had traveled to Pakistan and invoked his talaq there, it might have been recognized in a U.S. court under the concept of comity, under which nations accept the premise of a law in another country "whether or not we agree with the law or its spirit."

But Aleem, he said, attempted to circumvent any such agreements.

"There was a certain lack of faith here because the husband initiated the talaq after his wife had filed for divorce," Fareed said. "He was trying to defeat the ends of justice within the American legal system."
5.7.2008 8:40pm
Bender (mail):
Marriage is an implied contract. When this man and woman married in Pakistan they implicitly agreed to this contract as it is formulated in that country. The wife (and the husband) should be held to that contract, unless there are exigent circumstances.

I think the court might better have narrowly focused on the exigent circumstances in this case, i.e, the husband's bad-faith attempt to thwart an ongoing civil proceeding in Maryland, rather than asserting broad powers to void a legal contract for no other reason than the judges' discomfort with some clauses in the original contract.
5.7.2008 8:40pm
tvk:
Smokey, I have no problem saying that a rule allowing the husband (but not the wife) to divorce by rushing to an embassy and writing "I divorce thee" three times is sex discriminatory and against public policy in every U.S. state.
5.7.2008 8:57pm
KeithK (mail):
Bender: they may have agreed to a Pakistani marriage contract, but then they moved to this country. The rules of marriage are different here. We wouldn't allow the man to beat his wife in Maryland simply because it might be permitted in Pakistan. We shouldn't allow the Pakistani version of divorce here either.

If the couple had traveled together to Pakistan and the man attempted to divorce her there it would be a much harder question, IMO. As it is I think the court got it right in this case and it really isn't even close.

I do share tvk's concern that the language is over broad.
5.7.2008 9:06pm
Eugene Volokh (www):
Bender: I'm curious why you think that marrying in a country should be seen as implicitly agreeing to abide by the divorce law of that country. Why not say that marrying should be seen as implicitly agreeing to abide by the divorce law of the place in which you'll be living at the time of the divorce?

That is, I believe, the rule as to the states within the U.S. Is it different in most of the rest of the world? Would Pakistani law, for instance, provide that couples who married in the U.S. but now live in Pakistan and are divorcing there should have their divorces adjudicated under U.S. law?

I ask largely because implied agreement claims seem at their strongest when the implied term is something that is in fact common practice. But if the common practice is to apply the law of the place of residence at divorce, rather than the law of the place where the marriage occurred, why should we assume that people are implicitly agreeing to something that doesn't commonly take place?
5.7.2008 9:06pm
Bender (mail):
Professor Volokh:

The principle that you're applying is probably reasonable vis-a-vis marriages and divorces within the United States and even within common-law and Roman law countries. Across all these legal systems, the general marriage contract is similar and important variations, such as the presence or absence of community property, should be (although they're often not) understood by the contracting parties.

In the case of marriages contracted under very different legal systems, such as Sharia, the parties are mutually agreeing to a very different set of contractual obligations. In this case, it seems to me to be a violation of the principle of contract to substitute a very different set of obligations than was originally agreed to, when the marriage contract is dissolved in the US.

I thought my repeated use of the word "very" was necessary because what I'm talking about is a difference of degree not of kind, but the degree is quite large and should not be ignored by US courts.
5.7.2008 9:38pm
ithaqua (mail):
The court's decision was absolutely wrong.

From a strictly legal standpoint, the court overreached its authority. 'Full faith and credit' needs not, of course, be given to foreign marriages - polygamous marriages are routinely declared invalid under US law - but if a precedent exists, the court should follow it. If a Pakistani woman who divorces in Pakistan is considered divorced under American law, it follows that Pakistan's divorce laws are not so very repugnant to the United States that Pakistani divorces are "contrary to the 'public policy' of Maryland."
I do not condone the husband's actions - it's classic venue shopping (he ran to the Pakistani embassy, technically Pakistani soil, in order to divorce his wife under Pakistani law to avoid the divorce suit she had already filed in Maryland) but this is judicial activism at its most blatant - 'we don't like the result, so we're going to invalidate the law.'

At the same time, although (as I said) I don't condone the husband's actions, I feel a great deal of sympathy for him; Maryland's divorce law, like that of most states, is heavily discriminatory against men - it provides that 'marital property' be divided between husband and wife, even when the wife has contributed little or nothing to the 'marital property'. So, from the opinion in this case:

"The central issue in the present case concerns the wife's attempt to have the husband's
pension from the World Bank, which relates primarily to his work performed while he was
a resident of this country, declared to be "marital property" and to have other property
declared marital property and thus be entitled to half of that pension and property under
Maryland law."

In other words, the wife in this case is doing what so many American women do - trying to rob her husband blind and take the money he personally earned during their marriage - but the husband in this case had an out:

"Under Pakistani law , unless the agreement provides otherwise, upon divorce all
property owned by the husband on the date of the divorce remains his property and "the wife
has [no] claim thereto." Th e opposite is also applicable. The husband has no claim on the
property of the wife."

Say what you might about Sharia law, this is far more just than the feminazi-inspired divorce laws in the United States, and I can't blame the husband for seeking justice. I can, however, blame the activist judges in this case for invalidating the divorce on the grounds that it is "contrary to the 'public policy' of Maryland", that is, insufficiently slanted in favor of the woman. Can't have those filthy males getting away with their own money, can we?
5.7.2008 10:06pm
Oren:
It also doesn't speak to what happens if the prenuptial contract doesn't give a specific limitation, but rather states, "in the event of a divorce, we agree that the property shall be divided by applying Pakistani law" or "... by applying Islamic law" or "... under a decision of an arbitral tribunal convened through [name of group]."
Would you accept such a prenuptial agreement if it could be shown that the bridge did not fully understand Islamic or Pakistani law?

To put it broadly, how much does a party entering into a contract have to know before she can give informed consent?
5.7.2008 10:07pm
Oren:
Also, to add to my 9:07, I feel that even if both parties had understood and agreed to the Islamic divorce law (woman divorces only with consent, man divorces by fiat) it would be very difficult to imagine that this contract is no unconscionable. No reasonable person would enter into an agreement that is (effectively) only binding on one party. Can anyone cite any other example of a contract like this?
5.7.2008 10:17pm
Bill Poser (mail) (www):
I have grave doubts as to the propriety of assuming that a woman who married in Pakistan gave consented willingly and knowingly to the terms of the contract. For some women that may be true, but the position of women in Pakistan is such that the pressure on a young woman to marry in accordance with Islamic law is often so intense that she should be regarded as having entered into the contract under duress.
5.7.2008 10:26pm
Oren:
Bill is entirely right.

Ithaqua has, once again, substituted his notion of public policy for that of the good voters of Maryland. It's not his fault though, he does know so much better than they do.
5.7.2008 10:39pm
Andrew Janssen (mail):
Gee, Ithaqua, bitter much?

The Maryland court's language may have been a bit broad, but the bad-faith venue shopping that the husband attempted should not be tolerated--he got what he deserved.
5.7.2008 10:52pm
Sean O'Hara (mail) (www):
Bender, are you arguing that if a couple marry under a legal system in which divorce is not allowed whatsoever and then move to the US, that US courts should refuse to grant either party a divorce under any circumstances?
5.7.2008 11:16pm
Oren:
Sean, I can't speak for Bender but I hope that any sane jurist would find such a marriage unconscionable.
5.8.2008 12:31am
ReaderY:
I take it Maryland will not recognize Israeli divorces either? The same logic would seem to apply.

Would Maryland refuse to accept a Jewish Bet Din or Islamic tribunal as an arbitration court?

I hate to say it, but cases like these are likely to have the net effect of putting people with religious restrictions in the column of those who use contract law to address the legalities of living together and ignore the state's marriage rules. If the state refuses to recognize or abide by ones religious arrangements and insists on imposing its ideas of the kinds of arrangements people can make, how can religious people have a state-recognized marriage?
5.8.2008 12:49am
ReaderY:
I agree with commentators who suggest that this case could, and should, have been decided on much narrower grounds, given the existence of competing proceedings.

It would also be appropriate to distinguish the existence of a divorce from certain details of the property arrangements. There could be terrible consequences if Maryland out and out refused to recognize foreign divorces as legitimate status changes. What if one of both parties remarried in a country recognizing the divorce?

Particularly in a case where both parties wanted a divorce, nothing could be gained by putting humpty-dumpty back together and calling the parties married until a local court says otherwise.
5.8.2008 12:57am
Oren:
ReaderY, you are quite confused as to Jewish Law. First off, in order to dissolve a Jewish marriage, it is essential to first get a civil divorce. Above and beyond that, a get (a religious bill of divorce) is required only if the partners want their future marriages to be sanctioned by the Orthodox (or stricter) denominations.

Jewish law is purposefully designed so that that Roman (or Maryland) law would never need to interfere in their internal affairs.
5.8.2008 12:57am
John Burgess (mail) (www):
Bill Poser puts his finger on a very real issue in looking at this case. It is a dangerous assumption to presume that a Pakistani woman is acting on her own volition in being married. Most Pakistani marriages are arranged marriages. While a particular woman might be given the opportunity to demure, that is far from the norm. Instead, she is told who she will marry, shuts up, and marries the person her parents picked for her.

Absent contrary information, I would assume that no matter her age, if hers was an arranged marriage she could not have entered a marriage contract with the state of knowledge that EV assumes. If she is, in fact, a scholar of Sharia law, that's a different matter.

I think the court came to the correct decision through correct legal reasoning. Comity works when there is broad or specific similarity between legal systems, not when they are grossly different.

Have there been any cases concerning inheritance by daughters? Under Sharia law, they receive far less than their brothers, even in intestate circumstances. That runs contrary to most US laws on inheritance, though of course a will can specify the same legitimately.
5.8.2008 12:58am
Oren:
Also, you are right about the difference between recognizing the divorce itself and recognizing the authority of another court to make decisions pursuant to that divorce.

I don't buy the 'narrower grounds' issue. The law in this country has never allowed contracts contrary to public policy nor has it allowed the law to enforce coerced, unconscionable or ill-informed contracts. I see no reason to start making exceptions now.
5.8.2008 12:59am
Laura S.:
Eugene writes:

I'm curious why you think that marrying in a country should be seen as implicitly agreeing to abide by the divorce law of that country. Why not say that marrying should be seen as implicitly agreeing to abide by the divorce law of the place in which you'll be living at the time of the divorce?


This is a classic example of habit obscuring the reason. Marriage laws are intended to make writing marriage contracts easier and provide the benefits thereof to people too poor to hire their own lawyers.

Similarly, incorporation requires an act of a legislature but most people take advantage of the fact that the legislature has passed a general law. Further, one state recognizes another's corporate entities but does not by that recognition presume to subject the corporation to the foreign state's laws of incorporation.

The State of Maryland in this case purports to apply a contract to which there was no consent; and the court executes this in contradiction to Maryland's public policy of recognizing foreign marriages. Notably, the legislature DID NOT qualify such recognition with a requirement that a couple submit to Maryland's contractual form.
5.8.2008 1:00am
Oren:
Bill Poser puts his finger on a very real issue in looking at this case.
I raised the same point 20 minutes earlier! Bah. Anyways, you are right on all counts.
5.8.2008 1:01am
Oren:
The State of Maryland in this case purports to apply a contract to which there was no consent; and the court executes this in contradiction to Maryland's public policy of recognizing foreign marriages.
You have in quite backwards: the State of Maryland has not applied a contract, it has refused to enforce one.

Certainly you acknowledge that the State of Maryland need not enforce any contract whatsoever that a plaintiff brings in their courts.

Notably, the legislature DID NOT qualify such recognition with a requirement that a couple submit to Maryland's contractual form.
Nor do I think they had to. The broader principles of public policy forbid acknowledging this particular contract. It has nothing to do with accepting Maryland's default rules and everything to do with whether the state will give effect to a contract that violates its core values.
5.8.2008 1:06am
ReaderY:

Also, to add to my 9:07, I feel that even if both parties had understood and agreed to the Islamic divorce law (woman divorces only with consent, man divorces by fiat) it would be very difficult to imagine that this contract is no unconscionable. No reasonable person would enter into an agreement that is (effectively) only binding on one party. Can anyone cite any other example of a contract like this?


No Orthodox Jewish rabbi will perform a marriage without a prenuptial agreement that provides for divorce under Jewish law, naming a Bet Din as arbitrators. And Jewish law is essentially the same as Sharia law here.

A key difference is that "a divorce" is essentially a ritual that must be performed by the man (analogous to the Islamic procedure of writing "I divorce thee" three times). However, in Jewish law courts can essentially order the man to perform the ritual under circumstances. But men can refuse.

In Israel, religious courts have civil powers and can put men in jail if they refuse to perform the divorce ritual. But the bottom line is that unless the man performs the ritual, there is no divorce. There was a case in the early 1990s of a man who had remained in jail for four decades for refusing to divorce his wife and had died there, still a married man.

Outside Israel there is significantly less recourse. In the United States the general procedure is to have the couple sign a prenuptial agreement which, in addition to appointing s Beit Din as arbitrators, generally provides that the man will pay a daily payment if he refuses to perform the ritual. If state courts refuse to honor the agreement, the net result tends to have the exact opposite of the intended effect. A woman cannot remarry within her religion without a religious divorce. And it doesn't matter what the state says, a civil divorce is just a piece of paper so far as status in the religious community is concerned, which regards the couple as married unless there is a religious divorce using the correct ritual. And if the state courts refuse to honoe these prenuptial agreements because they find the whole concept repugnant, the net result is that religious women will have less recourse than before.

The basic purpose of the prenuptial agreements is to provide measure of power to the wife by providing for a way that a husband can be ordered to perform the divorce ritual and to provide for real consequences if he doesn't. If those agreements are not honored, then wives become completely at the mercy of their husbands, husbands can demand blackmail money in order to perform the procedure. It's certainly true that a woman can simply abandon her religion and the community she grew up in or joined and there will be no problem so far as the secular world is concerned. But if people who are ideologically opposed to a religious framework simply chop down attempts to reach an equitable resolution within the constraints of the religious framework on grounds that the whole framework is wrong, the result is to require that religious women abandon their religion in order to be able to marry. Such a demand creates a dilemma that is very hard on people, and is not good for social stability. It may instill animosity for the religion, but then again it may instill animosity for the state. Religion is a very emotionally matter that can't simply be turned off and abandoned because some judge says so.
5.8.2008 1:27am
Oren:
No Orthodox Jewish rabbi will perform a marriage without a prenuptial agreement that provides for divorce under Jewish law, naming a Bet Din as arbitrators. And Jewish law is essentially the same as Sharia law here. [SNIP] A woman cannot remarry within her religion without a religious divorce.
You do realize that the Orthodox represent approximately the 15% most stringent of Jews right? The rest of us are perfectly content to leave such nonsense aside and get on with the 21st century.

In Israel, incidentally, the civil courts have concurrent jurisdiction with the religious courts on matters of marriage. Even when religious courts have full jurisdiction, the Israeli Supreme Court has generally ordered them to enforce equal protection on the genders as a matter of public policy.
5.8.2008 3:13am
Oren:
A woman cannot remarry within her religion without a religious divorce. And it doesn't matter what the state says, a civil divorce is just a piece of paper so far as status in the religious community is concerned, which regards the couple as married unless there is a religious divorce using the correct ritual. [SNIP] It's certainly true that a woman can simply abandon her religion ...
Again, you confuse Orthodox Judaism with Judaism at large. Most Conservative and Reform Jews (e.g. >75%) will not have a problem acknowledging as legitimate a divorce initiated by a woman.

As far as the Orthodox go, I don't see any particular legal right to demand that people acknowledge anything as legitimate. They have the right to consider two people married as long as they want. They have the right to refuse to marry two people for whatever reason they see fit.
5.8.2008 3:18am
AlGoreski:
Where can I git me one of dese Packystani divorces? I need one myself...
5.8.2008 8:36am
Whadonna More:

Bill Poser writes:

By the public policy argument, the Maryland courts should consider [a Pakistan-divorced couple] still married and allow [the Mrs.] to petition for divorce and a property settlement. If not, what prevents this?



The marriage was never a proper subject of jurisdiction in Maryland, never leaned on Maryland law for enforcement and looked to Maryland to give full faith and credit to it's existence.
I'm curious why Eugence thinks that contracting to sell your son into slavery
5.8.2008 10:58am
kehrsam (mail):
Well, they lived in Maryland, so they consented to its jurisdiction. But there was nothing to prevent the Court from allowing the divorce and noting that since the wife had already filed the suit for division of property, that suit would continue, applying Maryland property rights. It's not the divorce that is in contention, it's the money.
5.8.2008 5:18pm
ReaderY:
Oren,

I'm not sure if the numbers matter here. Jews as a whole are a single-digit population of the U.S., and the Moslem population is also a small percentage. But so what? Religious rights and obligations aren't limited to majority religions.

As to the Israeli situation, civil courts have concurrent jurisdiction over property settlements and custody only, not over the act of divorce and the consequent ability to remarry. This is a narrowing construction of the religious courts' jurisdiction Although the Supreme Court has declared as a principle that appeals can lie to it from rabbinical courts, and as a result it has sometimes told them to stop dawdling and make a decision and sometimes construed their jurisdiction narrowly, but it hasn't actually ordered them to rule a particular way on religious law on matters clearly within their jurisdiction. For example, when the Israeli Supreme Court recently ordered the rabbinate to set uniform national standards for defining the procedures necessary for kosher produce during the sabbatical year, saying that different local standards were a burden on agriculture and commerce and religiously unnecessary. In doing so, it made clear it wasn't telling them what that decision should be or how kosher should be defined, just to have one national rule rather rules which varied locally.
5.9.2008 1:13am
ReaderY:
Oren,

I'm not sure if the numbers matter here. Jews as a whole are a single-digit population of the U.S., and the Moslem population is also a small percentage. But so what? Religious rights and obligations aren't limited to majority religions.

As to the Israeli situation, civil courts have concurrent jurisdiction over property settlements and custody only, not over the act of divorce and the consequent ability to remarry. This is a narrowing construction of the religious courts' jurisdiction Although the Supreme Court has declared as a principle that appeals can lie to it from rabbinical courts, and as a result it has sometimes told them to stop dawdling and make a decision and sometimes construed their jurisdiction narrowly, but it hasn't actually ordered them to rule a particular way on religious law on matters clearly within their jurisdiction. For example, when the Israeli Supreme Court recently ordered the rabbinate to set uniform national standards for defining the procedures necessary for kosher produce during the sabbatical year, saying that different local standards were a burden on agriculture and commerce and religiously unnecessary. In doing so, it made clear it wasn't telling them what that decision should be or how kosher should be defined, just to have one national rule rather rules which varied locally.
5.9.2008 1:13am
ReaderY:
Figures for the percentage of Orthodox Jews in the US vary, although there's general agreement that it's grown substantially in the last two decades and that in the world as a whole, secular Jews are the largest group by a long shot with Orthodox Jews coming a definite second and all other groups being substantially behind due to their being largely confined to North America. But the issue doesn't depend on whether a majority or a inority is involved -- after all, both Jews and Moslems of all stripes are a tiny minority in America, but have greater influence elsewhere in the world.

The typical problem is the opposite of the one in this Maryland case, the case of husbands going through a civil divorce, and then refusing to participate in a religious divorce unless the settlement is scuttled and renegotiated in the husband's favor. A system of arbitration agreements enables this outcome to be prevented because it gives religious tribunals the ability to impose consequences on a husband who doesn't act reasonably.

But the province of Ontario recently refused to enforce arbitration agreements appointing a religious tribunal as the divorce arbitrators on grounds that Sharia-based tribunals have rules it considers to be repugnant to public policy. What happens if U.S. states follow suit? If a state like Maryland refuses to enforce religious tribunal arbitration won't be enforced on grounds that courts don't like underlying religious doctrines, the net result is basically to shift power away from women and permit what's essentially a kind of blackmail. In other words, the scholars adapted rules alleviating some of the harsh effects of the underlying scriptural rules; so if their role is taken away those effects come back in full force.
5.9.2008 1:45am
Oren:
ReaderY, the numbers matter because I resent having the entire Jewish community defined by the standards of our most stringent few, not because it's legally important. I respect their right to do as they please so long as it's not imputed that their decisions carry any weight in the larger community.

As far as Israeli law goes, you are right that religious courts have exclusive jurisdiction over divorce but civil courts have asserted (relatively recently) that they can impose huge damages on husbands that refuse to release their wives. Because of the enormous damages involved, and the fact that the husbands family is required to pay if he can't, the reality of divorce in Israel is almost entirely gender equal (although, as usual, we Jews insist on doing it in a convoluted way that maintains a semblance of tradition).
5.9.2008 1:56am
Oren:
Also, the problem with your analysis in the second paragraph is that, from a public policy perspective (in the US), a get is entirely irrelevant. So what if a woman can't get a get? That doesn't preclude her from doing anything meaningful, it only means that some people will refuse to consider any of her future marriages. Their recognition just doesn't have any bearing on her substantial rights.

The ruling does nothing to shift any real power between men and women, it only asserts the basic (and, IMHO, uncontroversial) that the State is not obliged to give effect to contracts that violate its policies. I'm usually a believer in broad deference to private contracts, but philosophically, I can't see any reason that private parties should be able to bind the state to enforce their agreements.
5.9.2008 2:19am
irwin (mail):
This case involves a fundamental question: To what extent does Maryland apply foreign law? If a motor vehicle accident happens in, say, New Jersey, but the suit is brought in Maryland, we'll apply New Jersey law. The fact that New Jersey has no "cap" on damages, while we do, is a big difference between the foreign law and ours, but not so abhorrent that we would not apply the foreign law. Black v. Leatherwood Motor Coach Corp., 92 Md. App. 27 (1992). On the other hand, sometimes (but it is rare and this case is one of those times) the foreign law is so abhorrent to our system that we just won't apply the foreign law. Laboratory Corp. of America v. Hood, 395 Md. 608 (2006).

So, how can you tell if the law of the foreign jurisdiction is not just different, but so abhorrent to our law that it won't be enforced here? Persons who respond on this thread are disclosing their personal views -which is fine- but the only way to really determine if a foreign law is so abhorrent that Maryland (or some other state) will not apply it is to ask the Court for its ruling on the degree of abhorrence.
5.9.2008 8:54am