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Islamic Agreements in Civil Courts:

Mohammed Zawahiri and Raghad Z. Alwattar were married, in an arranged marriage. The day of the wedding, Zawahiri signed a "mahr" under which he promised to pay his wife $25,000 in the event of divorce. Last week, the Ohio Court of Appeals held that the agreement was unenforceable under generally applicable Ohio prenuptial agreement law (chiefly because it was "presented a very short time before the wedding ceremony and postponement of the ceremony would cause significant hardship, embarrassment, or emotional stress," and because "Zawahiri did not have the opportunity to consult with an attorney prior to signing the marriage contract"). This may well be an accurate statement of Ohio law, and I don't mean to quarrel with it here.

What particularly interests me, though, is the trial court's alternative basis for its decision, on which the appellate court didn't opine: The First Amendment barred enforcement of a mahr -- just as it would bar the enforcement of an agreement to give a Jewish religious divorce (citing an unpublished Ohio decision, Steinberg v. Steinberg, 1982 WL 2446 (Ohio. App.)). Though the mahr requirement "seems less like a religious act than the participation in a religious divorce ceremony," "because the obligation to pay $25,000 is rooted in a religious practice, it is similarly a religious act" and a court therefore can't order the husband to make the payment.

I saw a similar First Amendment argument made in last month's Ahmed v. Ahmed, but the appellate court didn't consider it because it hadn't been properly raised below. I also saw it made and rejected in Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ch. 2002):

[T]he Mahr Agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a "free exercise" of religious beliefs, no matter how diverse they may be. If this Court can apply "neutral principles of law" to the enforcement of a Mahr Agreement, though religious in appearance, then the Mahr Agreement survives any constitutional implications. Enforcement of this Agreement will not violate the First Amendment proscriptions on the establishment of a church or the free exercise of religion in this country. "The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity."

It seems to me that the New Jersey court got it right, and the Ohio trial court got it wrong: If two parties enter into an agreement promising to perform a secular act (e.g., pay money) in the event of some secularly ascertainable event (e.g., a divorce), there's no Establishment Clause barrier to enforcing such an agreement. There might be state law principles constraining such agreements. But the religious motivation for the promise, and the religious event in which the promise was made, shouldn't affect the analysis. (See Jones v. Wolf, which holds that church property disputes may be resolved by civil courts using "neutral principles" of contract and deed interpretation.)

I would go further and say that refusing to enforce a contract simply because of its religious source or motivation would itself violate the Free Exercise Clause, because it would deny people an important generally available right (the right to have contracts enforced) because of their religious motivations. A person who has a religious reason for entering into a contract is just as entitled to enforcement of the contract as a person who has a secular reason for doing so.

There are indeed reasons why civil courts may not enforce certain contracts, for instance when enforcing the contract requires interpretation of religious doctrine, or when it would require ordering people to perform an act that has purely religious significance. (I should note that there's a conflict among courts about whether enforcing prenuptial contracts to give a Jewish religious divorce, called a get, would violate the Establishment Clause; but that, I think, is because the giving of the divorce, as opposed to paying money, is indeed an act that has purely religious significance.) But when the contract simply calls for a payment of $25,000 in the event of a divorce, and the parties do indeed get civilly divorced (so there's no need to determine whether there's a valid religious divorce), then it seems to me that the motivation for the contract should not make any difference.

David Schwartz (mail):
This is one of those "no, but yes anyway" cases. Okay, fine, the court can't force him to make the payment, since that's a religious thing. But he promised to make the payment and didn't, so he should have to pay her damages for his failure. Those damages are $25,000. So he can make a completely different payment for the same amount.

Suppose someone hires me to bless them by giving them $15,000 in blessed currency and pays me $20,000 to do so. Suppose I fail to do anything at all. The court can't order me to give them $15,000 in blessed currency, but it can decide that I failed to live up to my commitment to perform this religious service and award them $15,000 to $20,000 in damages.

Clearly, the court couldn't address a case where the money didn't seem sufficiently blessed to them.
7.17.2008 7:11pm
Stormy Dragon (mail) (www):
Does this mean that all religious marriage ceremonies performed in the state of Ohio are now null and void?
7.17.2008 8:05pm
ReaderY:
Last time I heard, the establishment clause didn't prohibit the free exercise of religion. The idea that the state will not regard people's acts as valid if religion was a motivation boggles the imagination.

There are numnerous situations where people's religiously motivated decisions result in acts which the State routinely ratifies. Will Ohio refuse to recognize diplomas from religious schools because religion may have been a motivator in attending? Will it specially refuse to let employees take religious holidays off because religion may have been a motivator in the decision of what vacation to take? Will it refuse to enforce private employment contracts permitting taking religious holidays because religion might have been a motivation in taking the holiday? Will it refuse to recognize oaths and affidavits because religion might have been a motivation in telling the truth?

The Establishment clause was never intended to make the state anti-religious or to put it in a position of regarding religion as something nefarous or improper
7.17.2008 9:14pm
David Schwartz (mail):
ReaderY: I think the argument is that the state can't compel a religious act, and therefore it can't enforce a contract that called for a religious act. I'm not sure this is a valid principle of establishment clause law, and even if it was, I don't think it matters.

First, the scope of specific performance is pretty narrow anyway. I couldn't see comparable non-religious acts being justifiably compelled either.

Second, it would be absurd to say a court couldn't order damages for failure to perform a religious act one had agreed to perform. Perhaps there might be limitations to how the court could judge where a religious act was "sufficiently performed" to religious standards, but this case is not like that.

If I hire a minister to perform a ceremony at my wedding, and he fails to do so, I should be entitled to my money back and damages. That the service contracted for was religious shouldn't make any difference.
7.17.2008 9:54pm
David Chesler (mail) (www):
the agreement was unenforceable under generally applicable Ohio prenuptial agreement law (chiefly because it was "presented a very short time before the wedding ceremony and postponement of the ceremony would cause significant hardship, embarrassment, or emotional stress," and because "Zawahiri did not have the opportunity to consult with an attorney prior to signing the marriage contract"). This may well be an accurate statement of Ohio law, and I don't mean to quarrel with it here.

Being a very literal-minded person, I took the terms of our ketubah seriously. I didn't consult with an attorney before getting married - most people don't, but they are taking on enforceable obligations. I guess you need an attorney in case there is fine print in the pre-nup, while the normal obligations, being generated by the state, are already vetted as reasonable. I figured a traditional ketubah was similarly vetted. I'd guess (correct me if I'm wrong) that the mahr has a similar tradition, and both parties expected that one would be part of the wedding.

Of course the ketubah contains phrases like 100 zekukim of pure silver and such terms, or looser expressions like "in the custom of Jewish husbands" are subject to religious interpretation.

Incidentally (or OT) I imagine the Islamic term marh is cognate with the mohar of the ketubah, and both are funds given, or set aside to be given, from the bridegroom to the bride, in the event of divorce or his death.
7.18.2008 9:38am
Fat Man (mail):
Reader Y needs to go back and read the the appellate decision:

[Plaintiff] argues that the trial court erred in concluding that the Establishment Clause of the Ohio Constitution barred court-ordered enforcement of the mahr provision. Because we have concluded that the marriage contract is not a valid and enforceable prenuptial agreement, we find that this argument is moot.

BTW: The Appellate court seems to have correctly applied Ohio law on pre-nups stated in Gross vs. Gross, 11 Ohio St.3d 99 (1984):

Antenuptial agreements ... are valid and enforceable (1) if they have been entered into freely without fraud, duress, coercion, or overreaching; (2) if there was full disclosure, or full knowledge and understanding of the nature, value and extent of the prospective spouse's property; and (3) if the terms do not promote or encourage divorce or profiteering by divorce.


The Zawahiri v. Alwattar case was unusual in that it was the woman who was seeking enforcement of the pre-nup. The court found that they never really established a marital home and stayed with their respective parents while completing their educations. If the pre-nup was enforceable the husband would have been forced to fork over $25,000. I wonder if he saved anything after legal fees.
7.18.2008 1:47pm
ReaderY:
It's not unusual at all for the woman to be the one seeking to enforce the agreement.

The reason is that the text of the underlying scriptures, the Bible and Qu'ran basically permit a man to divorce a woman at will, while later sages instituted rules and customs ameliorating the effects by requiring that a man agree to give the woman support and other rights in the event of divorce. These customary agreements arise out of those institutions. Because they were designed to give the woman rights, it is not at all suprising that the woman will be the one who wants to enforce them. In fact this will almost inevitably be the case.

I would tend to agree that when one is dealing with a longstanding custom that involves doing something very simple and easily understood, a lawyer doesn't really add any value. One doesn't really need a lawyer to understand what "pay $25,000" means. However, the state may well have a right to require talking to a lawyer before getting married, and it would not be an unreasonable compromise for an arrangement by which a lawyer catering to an Islamic clientele would draft a form cover pre-nup designed to give a Mahr agreement legal effect in Ohio and a lawyer witnessed the cover form, so long as these types of agreements aren't invalidated simply because their origin is religious in nature, and so long as the cover merely supplements rather than replaces the actual traditional Mahr text.
7.20.2008 12:17am
ReaderY:
http://www.gonzagajil.org/pdf/volume4/Freeland/Freeland.pdf

This article discusses the general enforcibility of Mahr agreements in civil courts. Interestingly, it cites a 1965 English case, Shahnaz v. Rizwan,which held that a Mahr was enforcible at a time when English law completely outlawed prenuptial agreements on grounds that a Mahr agreement, properly understood, is not in fact a prenuptial agreement as that term is understood in English law, but is purely an in personam property agreement not subject to laws regulating prenuptial agreements. The article quotes te Shahnaz court as holding:


In my judgment, it is quite different in essence from maintenance as understood in English or Mohammedan law. This right is far more closely to be compared with a right of property than a matrimonial right or obligation, and I think that, upon the true analysis of it, it is a right ex contractu, which, whilst it can in the nature of things only arise in connection with a marriage by Mohammedan law … is not a matrimonial right. It is not a right derived from the marriage but is a right in personam, enforceable by the wife or widow against the husband or his heirs.


According to the Shahnaz court, the consideration involved was not an agreement to marry, but rather, agreement to marry under Islamic law as opposed to civil law. In other words, the consideration involved was a choice of law clause, not the marriage itself.

The article explained:


The difference between the American and English approaches is that the consideration in Shahnaz v. Rizwan was the promise to marry under Islamic law rather than under western state law. That, after all, was the real basis for the agreement in the first place. According to this reasoning, the rules of ante-nuptial contracts, which may not have been considered by the parties, need not be met.


Thus, there is caselaw suggesting that the Ohio Court of Appeals misunderstood the nature of a Mahr agreement and the framework by which it should be understood.

The article also suggests caselaw that the agreement is not itself a religious act.
7.20.2008 1:15am
ReaderY:
The Jewish Kettubah involves a promise of marriage "according to the laws of Moses and Israel". Perhaps it could also be argued that this also isn't really a prenuptial agreement and the consideration involved is similarly simply a choice-of-law clause (which laws one marries in accordance with) or the decision to have a Jewish ceremony, as distinct from the marriage itself, so that laws restricting prenuptial agreements wouldn't apply.
7.21.2008 1:04am