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Don't Specially Nanny-State Muslim Women:

The cases about secular enforcement of Muslim dowry-on-divorce agreements (see below) remind me of a broader thought I had offered before about Islamic agreements and American law: Those agreements should be treated the same as other agreements, without any attempt to specially nanny-state the parties.

If American law provides for certain constraints on contract enforcement generally -- e.g., you can't contract to have your hand cut off, certain prenuptial agreements are unenforceable, contracts entered into by minors are unenforceable unless properly ratified when the minor becomes an adult, parties can't contract away the rights of nonparties, such as the parties' future children, etc. -- those same constraints should apply to Islamic agreements. That should be true of agreements to arbitrate pursuant to certain rules, agreements to pay money in the event of a divorce, or whatever else. But if American law allows people freedom of contract, even when the people are young, foolish, socially pressured, and the like, Muslim people are as entitled as other people to such freedom (with the burdens that freedom often yields).

Sometimes the enforcement of the agreements might hurt Muslim women, who we think were wrongly pressured by family, community, or religion into waiving important rights. Sometimes it might help Muslim women, as with the enforcement of promises of a certain payment on divorce. But that, I think, shouldn't much matter, because the more important point is that Muslims, women, and Muslim women should be no more and no less entitled to freedom of contract than the rest of us.

If they feel undue pressure, the harsh but proper remedy is for them to leave the source of the pressure, again, whether family, community, or religion. Of course the law should protect them as best it can against unlawful (for instance, violent) retaliation for the departure; but that should be the extent of it. This "leave and take the social consequences, or stay and live with the contracts you make" is the remedy American law offers to the Amish, Hasids, Mormons, Catholics, Baptists, or anyone else, religious or not, who are dissatisfied with what their families, communities, or religions demand of them. It should be no different for Muslims.

Dilan Esper (mail) (www):
This seems to me to be a very plausible response.

The only problem I see is with tribunals attempting to resolve issues of religious law (a problem that comes up in other areas, such as church property disputes). For instance, the Federal Arbitration Act requires that arbitration awards be vacated in the event of clear legal error. Now, how is a federal court supposed to interpret Sharia? Or traditional Rabbinical law, for that matter.

Thus, the alternative-- which is to bar enforcement of these contracts altogether and apply the substantive law of the jurisdiction to the dispute-- seems to me to also be a plausible solution.
7.17.2008 8:18pm
ReaderY:
An arbitration can't be vacated for legal error in the ordinary sense. The standard is quite narrow, only if the arbitrator didn't look to the right body of law. It's very differential. Obviously, the First Amendment would prohibit a secular court from claiming that a rabbinical court didn't look to Jewish law. But this doesn't make an arbitral award unenforcible. It simply means that people using religious tribunals are slightly less able appeal to a secular court to get them out of the award.
7.17.2008 8:59pm
ReaderY:
Suppose an Islamic man divorces his wife in civil court but refuses to give her an Islamic divorce. The basic thing these agreements do is to provide the wife a way to compel the man to do so. Otherwise, she is still married in Islamic law and any marriage or relationship with another man would be adultery.

Professor Volokh's basic premise here -- that the only thing involved is one's own skin and one can choose between honoring ones agreements or social scorn -- assumes such a choice exists individually. The fundamental premise is incorrect here. Platitudes trip from the tongue lightly when one has no skin in the game oneself. Professor Volokh should at least attempt to craft an argument that addresses the actual situation.
7.17.2008 9:06pm
Donald Kilmer (mail):
The freedom of contract as a general principle is important, but it is a right that is watered down and subject to exacting scrutiny in the marriage context. Contracts between fiduciaries are treated very differently than arms-length transactions between strangers. Husbands/Wives/Same-Sex Spouses are fiduciaries to each other upon marriage. [CA Fam C 721]

California has statutes that prevent lawsuits for "fraudulent promise to marry" [CC 43.4] and no cause of action lies for breach of a promise to marry [CC 43.5(d)]. And even though dower and curtesy are not recognized under CA property law [C Prob 6412], it is possible to recover gifts made in contemplation of marriage when the marriage doesn't happen. [CC 1590] The CA legislature has not been crystial clear on these issues.

There are several reasons why "liquidated damages" for a divorce (that do not address spousal/child support as such) that are part of a prenuptial might not pass muster under the CA Family Code: (1) If the terms and the amount actually encourage divorce, they would be nullified on public policy grounds as destructive of marriage; (2) If the terms and the amount required that a court make a finding of "fault" for the divorce, they would be struck down as violating CA public policy on "no-fault" divorces; (3) If the terms and amount purport to strip a CA Family Court of jurisdiction over child custody and/or support, they would also be void under the Family Code.
7.17.2008 9:17pm
Bill Poser (mail) (www):
I'm generally in agreement but have two concerns. One is that there is normal and acceptable social pressure and there is excessive social pressure. If Mohamed and Ahmed, both adult men who have lived in the US for some time and are familiar with its law, enter into a business transaction and, feeling that they would otherwise distance themselves from their Muslim community, choose to have the contract governed by Shari'a Law, that's fine. If Leila, a 16 year old girl, is brought from another country to marry a man here, I think that the court should examine very carefully whether she truly consented to the wedding and the marriage contract. The pressure to which she is subject is quite different in nature and degree from that to which Mohamed and Ahmed are subjected.

My other concern is that legal decisions often affect third parties, including third parties who lack standing to intervene in the proceedings. Such third parties may rely not only on the behavior of the parties but on how the courts will deal with problems. I'm not sure we want such parties to have to understand how Shari'a law might apply. This is, after all, why things like the UCC are a good idea.
7.17.2008 9:29pm
Snarky:

specially nanny-state


With such charged language to describe the proposals of anyone who disagrees with you, you have one the debate already. Congratulations! Anyone who disagree with you must be a heavy handed paternalist.

So, anyway, why even say anything more?


Sometimes the enforcement of the agreements might hurt Muslim women... Sometimes it might help Muslim women... But that, I think, shouldn't much matter, because the more important point is that Muslims, women, and Muslim women should be no more and no less entitled to freedom of contract than the rest of us.


Oh. I get it "freedom of contract" is what matters. We should have freedom of contract, even if is a net harm to those who have it.

Makes sense. In a sick sort of way.

Of course, with this point of view, I do not see how you can agree with any "nanny-state" limitations on freedom of contract at all. Why shouldn't you be able to contract to have your hand cut off? I mean, after all, even if enforcement of such contracts to have your hand cut off is a net harm to those who enter into such agreements, it "shouldn't much matter." Instead, "the more important point is that [people who want to enter contracts to have their hand cut off for the sick enjoyment of others] should be no more and no less entitled to freedom of contract than the rest of us.

Your point of view is hardly coherent. Although, I like the nice attempts at debate-ending rhetoric. (labeling the ideas of those who disagree as advocating "nanny state" policies.)

Here is a more coherent point of view:

Freedom of contract should be allowed when it is a net benefit to the participants.

Freedom of contract should not be allowed when it is a net harm to the participants.

The correct level of analysis is not that we look at every individual contract to ensure that both parties got the best deal possible, but rather that we look at the type of contract.

In contrast, your point of view, which somehow elevates freedom of contract to a principle that is more important than whether it helps or harms people, seems quite extreme.
7.17.2008 10:03pm
CheckEnclosed (mail):
Applying the general civil law will also mean applying concepts of undue influence, coercion, and constructive fraud. The specific components of the parties' cultural and religious backgrounds will, properly, inform the way in which those concepts are applied.

Since the U.S. serves as a place of refuge for people who want to leave the legal/cultural environment of other countries, and enjoy the legal system and personal freedom provided here, it is important to extend those aspects equally to all.
7.17.2008 10:07pm
ReaderY:
An article on the value and enforcability of a ketubah:

http://www.jlaw.com/Articles/KETUBAH.pdf
7.17.2008 10:18pm
wooga:
Snarky,
Prof. Volokh very clearly said "Don't Specially Nanny-State Muslim Women." You know that, as you quoted it yourself.

The word "specially" is not just a decorative word. This is abundantly obvious by the repeated theme of the post: "Muslim women should be no more and no less entitled to freedom of contract than the rest of us." There is no call for unlimited freedom of contract. There is no blanket condemnation of state restrictions on individual freedom. It is simply saying that the desire to create special restrictions on contracts, targeted towards protecting muslim women, would smack of paternalism and be 'nanny state' behavior.

I disagree with the post, but for the very un-pc (and absolutely no longer legally sound) reason that I view the fundamental tenants of Islam as incompatible with American liberty. Just like communism is incompatible. Whereas laws directly targeting communist advocacy where once seen as acceptable governmental interference, I think the same should hold today - for both communism and Islam. I say this as someone who married a persian woman who was the product of one of these Islamic arranged marriages. Our own marriage would subject me to the death penalty in Iran (she gets double death penalties). So call it a personal grudge.
7.17.2008 10:28pm
ReaderY:
Like opponents of women wearing head scarves at Turkish universities, opponents of enforcing religiously based contracts claim to be acting in the interests of women and protecting them from coercion. But the reality is that it is the women who are most harmed by such views. Like Turkish women who are essentially prohibited from entering university, to fail to permit a woman to enforce a marriage agreement is not just to deny her agreed-on compensation (the agreements that wouldn't be enforced involve the payment of compensation from a man to a women), but to deny her the ability to free herself from her situation and remarry within her community.

Because of the underlying religious availability of polygamy, husbands can simply refuse to give their wives religious divorces and can remarry civilly and often religiously, while women have to go through a religious divorce to be able to remarry. As a result, blackmail is not only possible but not uncommon: with no protection, men can simply dictate divorce terms in exchange for agreeing to provide a religious divorce that will permit the woman to remarry.

Failing to enforce these types of agreements takes away exactly the protection that women have from such a situation. Just as there can be no pretense that prohibiting women who wear head scarves from attending universities is in any way good for women who wear head scarves, there should be no pretense that outlawing women's ability to protect themselves against blackmail is in women's interests or will give women better opportunities.
7.17.2008 10:33pm
Dar Nedson (mail):
For those who agree with Professor Volokh's point as I do--can we also agree that we need to sharply limit the immigration of Muslims to the U.S., to avoid this problem as much as possible?
7.17.2008 11:56pm
Boose:
I agree, but would definitely like the courts to show an extreme level of concern to make sure that no coercion is happening under the table. Misogyny is pretty rampant in Islam, and taking extra (procedural, not legal) measures to make sure no one is getting hurt sounds prudent.
7.18.2008 1:27am
ReaderY:
Afraid it's too late to close the barn door on this one -- there were Jews at the Founding, not to mention all those Muslims brought in as slaves. Unavoidable.
7.18.2008 1:30am
Bill Poser (mail) (www):
ReaderY,

While I agree that refusing to enforce the mahr is not to the advantage of Muslim women, it is also important to note that Muslim women in the US have the benefit of the civil law of the state in which they reside and therefore have the possibility of alimony, child support, equitable division of community property and child custody. American provisions in this area are generally considerably more favorable to the woman than Shari'a law is.

With regard to forbidding headscarves, the effect on the women really depends on the particular context. Women who truly regard wearing a headscarf as a religious requirement or are under the thumb of men who do, will, as you say, be denied the opportunity to attend university. However, many women who demand the right to wear a headscarf do so in order to make a political point - it is not, for them, a true religious obligation but rather a custom that is symbolic of their Islamist orientation. Such women will still go to university, without their headscarves, if they lose the argument. Really conservative Muslim women, and women under the control of really conservative Muslim men, aren't going to go to university with or without a head scarf, so for them the point is moot.

In the case of Turkey, I suspect that the majority of women who wish to wear headscarves will go to university even if they are not permitted to wear headscarves.
7.18.2008 2:05am
GaryC (mail):

Boose:

I agree, but would definitely like the courts to show an extreme level of concern to make sure that no coercion is happening under the table. Misogyny is pretty rampant in Islam, and taking extra (procedural, not legal) measures to make sure no one is getting hurt sounds prudent.


Assuming this story from World Net Daily is correct, the level of concern shown by the courts in Pakistan is mindboggling.

http://worldnetdaily.com/index.php?fa=PAGE.view&pageId=69851

To recap the story, two Christian girls, one 13 years old and the other 10, disappear while walking visit an uncle. Four men are seen grabbing the girls, and the men are identified as members of a "human trafficking ring".

Two days later, two of the alleged kidnappers walk in to a local police station and report that the girls had
a) converted to Islam, and
b) married the men.
It is not clear how many other wives the men already had.

The men wanted the District Court to award them custody of the girls, whose relationship to their family had been ended with the conversion to Islam.

The judge agreed, and the father is now trying to appeal.

In the mean time, the girls are believed by family members to have been sent to work in a brothel by their "husbands."
7.18.2008 2:34am
GaryC (mail):
As another example of the need for special scrutiny, and the types of pressure that are possible, here is a link to a picture of Rojda Gezginci, a Turkish girl whose face was mutilated by her husband's family.

Rojda Gezginci

She had refused to become a prostitute after her husband was sent to prison. She was originally raped at the age of 13, then forced to marry her rapist under Islamic law. Her husband in prison for a later conviction of raping another child.
7.18.2008 2:43am
neurodoc:
EV: "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."
So, as a First Amendment scholar, do you think courts should or should not enforce prenuptial contracts requiring the giving of a get?

Say a father wants his son to be religiously observant and promises to pay him a certain sum at the end of the year if the son performs certain rituals each day, e.g., puts on phylacteries and recited prayers. Should a court enforce that promise to pay if the son performs his side of the bargain by doing those religious acts? Should a court refuse to enforce the contract if it required the court to make a determination informed by religous law, e.g., whether or not the son put on the phylacteries in the proper manner?

If the court should not enforce that contract for the performance of religious rituals, should it enforce a virtually identical "secular" contract? (Father, wanting to encourage his son to read poetry, promises to pay the lad for reading aloud each day for a year Shakespear's sonnets.)
7.18.2008 7:05am
Happyshooter:
We would not have our courts enforce a contract made with the mob, why would we enforce one made with islam?
7.18.2008 10:51am
Mitchell Freedman (mail) (www):
But doesn't that $25,000 charge referred to you in your first quote directly undermine the equitable distribution or community property secular values, such that the compelling secular interests behind modern divorce laws should trump the religious document's demand for a payment of money by a woman to a man (somehow I doubt there are many going the other way in these sorts of marriages promoted by fundamentalist Islamic folks...)?

I think we should be looking at this less theoretically and not merely looking at the First Amendment when fundamental human rights are at stake. Notice the irony of my use of "fundamental" in this regard, I have to admit!
7.18.2008 11:05am
Eugene Volokh (www):
Happyshooter: Moe Islam? The personification of Islam? You can make contracts with him? Drag Islam into court when Islam breaches its contracts?

Neurodoc: I'm inclined to say that if you clearly and specifically promise to do something, coercing you (through damages or even, in some circumstances, through specific performance) to do it is a permissible form of coercion, even if the something is an inherently religious ritual. So if the enforcement can be done without having a court make religious decisions (e.g., whether a get is properly drawn, whether the rabbi whom the party calls to certify that the get is properly drawn is from the right stream of Judaism, and so on), I don't see a problem with that.

But even if courts disagree -- as some do -- and say that Establishment Clause rights not to be coerced into participating in religious rituals can't be waived this way, I don't think that this should carry over to promises to pay money, even if they are religiously motivated and are made during religious rituals.
7.18.2008 11:44am
ReaderY:
Bill Poser - In every case mentioned on this blog so far, it's been a women who's been a plaintiff attempting to enforce a right under one of these agreements. So the courts' invaldating the agreement has uniformly been to the detriment of the woman. Claims that these agreements uniformly hurt women have to be influenced by the facts of cases.
7.18.2008 12:19pm
ReaderY:
GaryC,

Do you really think that this is the fault of Islam, or that people from Western countries haven't done similar sorts of things and made similar sorts of claims? And you think Western judges have never been duped?

The lead case on parental immunity was a 19th century case from Mississipi where the parent put the child in an insane asylum in order to gain control of an inheritance. You don't think spousal privilege has been abused? You don't think the 4th Amendment hasn't resulted in criminals going free?

Whenever society values something or holds it sacred, criminals have used it as a shield to enable them to escape the consequences of injustice. And societies -- including ours -- have sometimes let them. It's not an easily avoidable problem. It doesn't mean society is terrible. People in Pakistan could undoubtedly tell horror stories about the criminals we let free because the police don't have a valid search warrant. But does this make us an evil society? And more to the point, should we drop the 4th Amendment or valuing the home because a case arises that abuses this value?

Obviously in a case like this we wouldn't accept the kidnappers' word that a "marriage" ever existed, so I don't think the substantive law makes all that much difference.
7.18.2008 12:30pm
ReaderY:
Professor Volokh -

"Establishment Clause rights not to be coerced into participating in religious rituals"

Since when does the Establishment Clause have anything to do with such a "right"?

To the extent that a state disallows as "coercion" persuasion and social pressure that would be acceptable on other matters, the state is violating the Establishment Clause by adapting a policy that religion and religious rituals generally are specially suspect things subject to special distrust. This would be would be establishing as official policy a doctrine that religion is a bad thing.
7.18.2008 12:35pm
Happyshooter:
Happyshooter: Moe Islam? The personification of Islam? You can make contracts with him? Drag Islam into court when Islam breaches its contracts?

You can't drag the mob into court, either. When you open your store in the city the trash removal service you are freely able to contract with or else your store will burn down is not "The Mob", it is "Professional Removal, Inc, owned through several layers by Tony the Mobster and his buds".

In the same manner, these women are freely able to contract for marriage as decreed by the Mosque and its leaders, or freely burn to death or be beaten.

And, yes, the guy who tells you to put no-shows on your payroll may be named Frank and be just him and his friends, but it is the mob. In the same way, the men who force the wedding may only be one or three religious leaders, but they are islam.
7.18.2008 1:56pm
ReaderY:

However, many women who demand the right to wear a headscarf do so in order to make a political point - it is not, for them, a true religious obligation but rather a custom that is symbolic of their Islamist orientation. Such women will still go to university, without their headscarves, if they lose the argument. Really conservative Muslim women, and women under the control of really conservative Muslim men, aren't going to go to university with or without a head scarf, so for them the point is moot.



If you say "your money or your life" and I give up my money to avoid losing my life, does this prove I never really valued my money? And if I give up my life to prevent your taking my money, does it prove my life was never really important to me?

Ever read Catch-22?
7.18.2008 8:50pm