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Sharia law, marriage contracts, and the rights of women
September 19, 2010 12:16 PM   Subscribe

How Sharia law can be both good or bad for women (via a&l daily)
posted by jb (44 comments total) 7 users marked this as a favorite

 
If you ain't no punk holla we want Sharia.
posted by persona at 12:27 PM on September 19, 2010


You know, except for all those dead women ...
posted by Cool Papa Bell at 12:27 PM on September 19, 2010 [8 favorites]


tl;dr: Woman had a pre-nup that she's signed in Pakistan, it was honored in the U.S. and gave her some money to get an apartment and on her feet.
posted by delmoi at 12:30 PM on September 19, 2010 [3 favorites]


The argument made by the article seems specious to me. There's no such thing as 'Sharia law' in the US as such. Rather, there are contracts and binding arbitration conducted according to Islamic principles. One could just as easily have a marriage contract based on fundamentalist Christian principles (e.g., covenant marriage).

There's also nothing unique to Sharia about the marriage contract terms described in this case. Couples make purely secular pre-nups with similar terms all the time.

Further, while the contract in this case gave the woman additional rights, it could just have well have been written in a lop-sided, anti-feminist way. I note as well that the marriage contract was enforceable in the US. I wonder if the woman would have had such luck enforcing the contract in a lot of Muslim countries that accord women far fewer rights than men and generally lack effective courts and easy access thereto.
posted by jedicus at 12:34 PM on September 19, 2010 [8 favorites]


delmoi wrote: "tl;dr: Woman had a pre-nup that she's signed in Pakistan, it was honored in the U.S. and gave her some money to get an apartment and on her feet."

The woman was from Jordan. The author of the article was from Pakistan.
posted by wierdo at 12:41 PM on September 19, 2010


tl;dr: Woman had a pre-nup that she's signed in Pakistan, it was honored in the U.S. and gave her some money to get an apartment and on her feet.
posted by delmoi at 8:30 PM on September 19


With as much understatement as I can muster, let me just say that this would seem to be a less-than-sufficient recommendation for Sharia Law.
posted by Decani at 12:50 PM on September 19, 2010 [3 favorites]


How do we solve a problem like Shari'a? How do you you catch a mullah and pin him down? How do you pick a school of Shari'a? A Hanbali, a Salafi, pick the wrong and upon you they will frown?

It ends with our plucky songstress and her bethroded fleeing to Turkey to avoid military service under Ahmadinijad with his his adorable singing children making their way to the US where they become integrated and wholesome Americans having left their Persian aristocratic lifestyle behind for freedom and democracy.
posted by humanfont at 12:51 PM on September 19, 2010 [6 favorites]


Enforceable contract is enforceable.
posted by vidur at 12:53 PM on September 19, 2010 [5 favorites]


It's a weird article because the takeaway is actually that for women with sufficient leverage and wealth, sharia law allows for marriage contracts that will put them in the same position as any American woman. Also, she said that spousal support after a divorce is "largely unimaginable" when I think she meant to write "completely typical".
posted by moxiedoll at 1:08 PM on September 19, 2010 [1 favorite]


A better discussion of sharia http://www.loonwatch.com/2010/09/sumbul-ali-karamali-whos-afraid-of-shariah/
posted by mulligan at 1:08 PM on September 19, 2010 [3 favorites]


Also, she said that spousal support after a divorce is "largely unimaginable" when I think she meant to write "completely typical".

That was said in the context of this particular marriage and divorce, where the couple had only been married for a few months. Whether spousal support would be likely would depend on the state law being applied, I imagine.
posted by jedicus at 1:11 PM on September 19, 2010


Not to worry...Newt's on the case.
posted by Thorzdad at 1:26 PM on September 19, 2010


Here is the text of Oklahoma's SQ 755 referenced in one of the above links.
This is a perfect example of yet another poorly drafted piece of Oklahoma legislation with the sole purpose of bolstering support for conservative politicians, and will have unforeseen consequences. For example, one of the concerns I have as a federal Indian law practitioner is that it assumes that federal and state law are the only sources of binding law. Interestingly, in a state with 38 recognized tribes, the SQ makes absolutely no mention of the application of tribal law. In typical State of Oklahoma fashion, you have politicians that are quite happy to demand a percentage of tribal gaming revenue as a condition of compacting for Class III gaming, yet conveniently forget about the tribal sovereignty that facilitates that revenue when drafting legislation.
posted by Dr. Zira at 1:27 PM on September 19, 2010 [3 favorites]


That Oklahoma proposal (as well as Gingrich's proposed federal version) is such First Amendment-violating garbage. I don't care much for Sharia as practiced, but people should be free to make contracts based on whatever sort of whackadoodle principles they agree on.

Another bit of unintended consequences: Temple B'nai Israel in Oklahoma City operates a beit din (see this calendar entry). So presumably Jews in Oklahoma would be prohibited from enforcing their halakha-based contracts or using beth din courts for binding arbitration.

Good lord. I see now that SQ 755 would also prevent judges from referring to treaties yet requires them to rely on federal law--of which treaties are an integral part. Insanity.
posted by jedicus at 1:43 PM on September 19, 2010


The value of this marriage contract appears to have nothing to do with Sharia per se; the author admits it was very atypical. Seems like she's almost trying to provoke Gingrichian responses.

Unlike the perfunctory and poorly drafted marriage contracts often used in my native Pakistan, Zainab’s contract had been drafted by an attorney, duly signed and witnessed, and had certified translations in English. Its clear stipulations mandated not only that Said did not have the right to contract any polygamous marriages, but that Zainab had the right to divorce him, something otherwise difficult for many Muslim women to do. The contract also imposed additional duties in the event of divorce upon Said
posted by msalt at 1:50 PM on September 19, 2010 [1 favorite]


Further research provided more hope than I had expected. After a discussion with some colleagues, I found that the contract, because it had been so carefully worded, fulfilled all the requirements of an enforceable contract under U.S. law. There was no reason that I could not ask for it to be honored as a pre-nuptial agreement. It was this argument, then, that I ended up presenting in Zainab’s case. A few days after we had submitted to the court, we got word that the judge had signed the order and approved the proposed settlement, never questioning the premises of the agreement. The final order of the court asked for support to be paid for two years and the ten-thousand-dollar amount to be paid in installments to Zainab during the same time. Clutching the court’s order that summer afternoon, Zainab was happier than I had ever seen her. Her Muslim faith and American future, it seemed, had come together.

Isn't this a rather breathless description of a matrimonial case that would be considered utterly bland, routine, and non-newsworthy if not for the fact that an Islamic country is involved?
posted by John Cohen at 2:00 PM on September 19, 2010 [5 favorites]


This article only makes sense in the context of a national debate that is thoroughly insane.
posted by keratacon at 2:00 PM on September 19, 2010 [4 favorites]


I read this article with great interest, but the author does not prove her claim at all. As previously mentioned, her marriage contract had nothing to do with Sharia law and was an anomaly in its generosity toward the woman. Indeed, perhaps the husband included these generosities (the spousal support and $10,000 payout) only because he knew they would be living in America and assumed the contract would be unenforceable.

Even if I did accept the author's implication that in this instance this woman is afforded more support under Sharia law, doesn't she also say that if she returned to Jordan she would be shamed and humiliated?
posted by Surinam Toad at 2:25 PM on September 19, 2010 [1 favorite]


Shame and humiliation (usually) isn't a function of law, but of the social order, whatever it may be. I may have the right to be an atheist, but that doesn't stop people here in Jesus-land from making their best effort to humiliate me for not believing in their deity.
posted by wierdo at 2:31 PM on September 19, 2010 [1 favorite]


Wrong. Wrong wrong wrong wrong wrong.

Sharia Any law that discriminates on the basis of gender is harmful to women and men. Period.
posted by IAmBroom at 2:34 PM on September 19, 2010 [4 favorites]


I've seen better contracts.
posted by Biru at 2:43 PM on September 19, 2010 [2 favorites]


Shame and humiliation (usually) isn't a function of law, but of the social order, whatever it may be. I may have the right to be an atheist, but that doesn't stop people here in Jesus-land from making their best effort to humiliate me for not believing in their deity.

Well, what does it mean to say that X "isn't a function of law"? If you mean that shame and humiliation aren't directly imposed by the law, then yes, of course you're right.

But there's no rule that says we can't bring up non-legal, non-government consequences even while we're having a primarily law-based discussion.

By analogy, if we were discussing criminal punishment, one thing that would be fine (in fact, important) to point out is that criminal penalties tend to carry social sanctions. For instance, once you've been convicted and have already fulfilled all your legal obligations to pay a fine, serve time in prison, etc., you'll still have to be worried that an employer who checks your criminal record will throw out your application. Again, even if we were mainly discussing the law, we'd hardly want to ignore these facts just because "hey, that happens in the private sector!"
posted by John Cohen at 2:47 PM on September 19, 2010 [1 favorite]


>> "it assumes that federal and state law are the only sources of binding law... [and] conveniently forget[s] about ... tribal sovereignty"

lol wut? maybe you should look up the definition of sovereignty, because what you're proposing - that the courts of the state of oklahoma should be bound by the laws of an entirely different jurisdiction - is the exact opposite of sovereignty.

>> Jews in Oklahoma would be prohibited from enforcing their halakha-based contracts or using beth din courts for binding arbitration.

How so? So long as the contracts are valid under U.S. law and the beth din courts are run by licensed arbitrators, I don't see the problem. And if they weren't, then they weren't enforceable and binding (respectively) to begin with.

>> I see now that SQ 755 would also prevent judges from referring to treaties yet requires them to rely on federal law--of which treaties are an integral part.

Almost no treaties are self-executing. What's the issue?
posted by thesmophoron at 3:35 PM on September 19, 2010


Either you live in a secular society with secular laws. Or you don't. I distrust religious notions of "law," and have seen little that suggests that such laws are fair, judicious , or equitable for women.
posted by Postroad at 3:35 PM on September 19, 2010


Yeah, this was a long, rambling article that accomplishes nothing and doesn't prove it's thesis.
posted by fuq at 3:40 PM on September 19, 2010 [1 favorite]


How so? So long as the contracts are valid under U.S. law and the beth din courts are run by licensed arbitrators, I don't see the problem.

For example, in order to interpret the terms of the contract the court may need to refer to halakha. If courts are forbidden to consider or rely on anything other than federal or state law, then a court would be prevented from considering halakha.

Almost no treaties are self-executing. What's the issue?

Because the law would prevent the courts from even "considering" treaties as well. Even a non-self-executing treaty must be referred to when trying to interpret the implementing legislation.

Another issue: very occasionally a US court has to apply the law of another country in order to reach a decision. This law would prevent that.
posted by jedicus at 4:14 PM on September 19, 2010


John Cohen wrote: "Well, what does it mean to say that X "isn't a function of law"? If you mean that shame and humiliation aren't directly imposed by the law, then yes, of course you're right.

But there's no rule that says we can't bring up non-legal, non-government consequences even while we're having a primarily law-based discussion.
"

Sure, but the social aspect seems irrelevant to me in the context of whether it's reasonable for courts to use principles of law found in other legal systems when interpreting a contract drafted in reference to that legal system.
posted by wierdo at 4:42 PM on September 19, 2010


Yes, I don't imagine that those social consequences would be at all relevant to whether a court should enforce a contract or how it should interpret the contract or anything like that.

But the article isn't just making a series of legalistic points. It's trying to say something profound about Islam and sharia and whether they only impede women's rights or can also help advance women's rights.

That's the context in which I understood Surinam Toad to make the observation that if the woman were to return to her home country of Jordan, she'd be met with shame and humiliation. This seems like a valid thing to bring up once we've established that the topic of discussion is women's rights in the Islamic world.

Once we've opened up a law-and-society discussion on a general-interest public forum, there's just no way the discussion can be policed as if no one can mention anything that's technically not "law." The article's author is the one who strained to take this case and turn it into something of momentous social significance. The article is now wide-open to social commentary that might go against the grain of the article's intent.
posted by John Cohen at 5:07 PM on September 19, 2010


Well, on the topic of society and how it relates to law, I think that it's not the mere fact of conviction for a crime that subjects the criminal to social repercussions. In tightly knit communities, it is the criminal act itself that subjects one to shaming and humiliation.

That's not to say that the law can't encourage that response, as it does with sex offender registries and that sort of thing. I'm saying it doesn't necessarily follow.
posted by wierdo at 6:05 PM on September 19, 2010


Well put, weirdo. The article is trying to say that Sharia is good as much as bad. But the fact that the author's client dare not return to her Sharia-based society for fear of persecution and ostracism undercuts her point pretty drastically.
posted by msalt at 7:01 PM on September 19, 2010 [1 favorite]


lol wut? maybe you should look up the definition of sovereignty, because what you're proposing - that the courts of the state of oklahoma should be bound by the laws of an entirely different jurisdiction - is the exact opposite of sovereignty.

I see in your profile that you're a lawyer, but I don't see where you're from, so forgive me if my assumption that you're an American attorney is incorrect.

I wish your argument were correct, because we could then forget everything we've ever learned in law school about conflicts of law, choice of law, and....ugh...renvoi. We could forget that we ever heard the words lex loci contractus and lex loci delicti. We could ignore that whole section of conflict of laws on our state bar exam. We could also forget a recent line of really repugnant Oklahoma state court decisions which allow individuals to drag tribes into state court to litigate disputes under the gaming compacts, instead of having sole jurisdiction over those exist in tribal court as the parties to our gaming compacts intended.

Think about it; state courts apply the laws of other jurisdictions all the time. Haven't you ever litigated a breach of contract dispute in state court with a choice of law law clause selecting application of law from another state? For example, an Oklahoma company and a Texas company agree to a contract with venue as Oklahoma state court, but the choice of law clause is Texas. Likewise, non-Indian Oklahoma entities scramble to do business with Oklahoma tribes all the time. The increasing economic development of tribes and tribal entities is an attractive source of new business development for non-Indian businesses.

I find it extremely interesting that the drafters seem to contemplate application of the laws of other states, but not the laws of any of the other tribes within the geographical boundaries of Oklahoma. Or do they? As I'm typing this, I realize that the language drafted in SQ 755 - "It makes courts rely on federal and state law when deciding cases" could pose a problem if someone reads the reference to "state law" as application of "Oklahoma state law" only. As a matter of policy, think about the result of banning application of law of other states' jurisdictions in Oklahoma state courts, and the chilling effect it could have for out-of-state entities doing business with Oklahoma. What if someone in Oklahoma wants to form a contract with a Canadian business, but wants to contract for application of Canadian law in Oklahoma state court? In addition, think of all the other areas of law which frequently require application of laws of other jurisdictions; torts and family law are huge areas.

Then there's a whole other can of worms thinking about the issue of enforcement of judgments. If you're talking about enforcing out of state judgments from other state or federal courts, then you've likely got a straightforward application of Full Faith and Credit. What about enforcement of arbitration awards from other jurisdictions? What about enforcement of judgments from foreign jurisdictions under the principles of comity? I'll let Hilton v. Guyot speak for me here:
"The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignty to which they belong, that courts of justice have continually acted upon it, as a part of the voluntary law of nations."

I mean, if Oklahoma wants to assert its sovereignty and become isolationists, so be it, but our economy can't exactly afford that attitude right now, especially given the role of Oklahoma oil and gas companies who do business internationally. Granted, some of this stuff could conceivably be removed to federal courts, but then you're opening up a whole other can of worms.
posted by Dr. Zira at 7:40 PM on September 19, 2010 [3 favorites]


"It makes courts rely on federal and state law when deciding cases" could pose a problem if someone reads the reference to "state law" as application of "Oklahoma state law" only.... What if someone in Oklahoma wants to form a contract with a Canadian business, but wants to contract for application of Canadian law in Oklahoma state court?

The ballot title makes such an interpretation extraordinarily unlikely. Besides, choice-of-law provisions are themselves part of state law. Is it your position that somehow Oklahoma's statute on choice-of-law provisions in contracts magically ceases to be "Oklahoma state law" as though spirited away by some state-law-destroying unicorn?
posted by thesmophoron at 8:39 PM on September 19, 2010


Besides, choice-of-law provisions are themselves part of state law. Is it your position that somehow Oklahoma's statute on choice-of-law provisions in contracts magically ceases to be "Oklahoma state law" as though spirited away by some state-law-destroying unicorn?

So your theory is that other sources of substantive law can be brought in under the table so long as it's done via an Oklahoma or Federal procedural law?

But under that theory, Sharia law could still be applied by Oklahoma courts because the laws of contract construction and binding arbitration are similarly matters of state and Federal law. But in that case much of the instant law would have essentially no effect, and a canon of statutory construction is that every provision of a law should be given effect and a law should not be interpreted in such a way as to render superfluous another portion of the same law. Landgraf v. Usi Film Products, 511 U.S. 244 (1994); Mackey v. Lanier Collection Agency Service, Inc, 486 U.S. 825 (1988).

So interpreting the proposed Oklahoma law according to the canons of construction we must conclude that only Oklahoma state and Federal substantive law may be applied by Oklahoma courts.* Otherwise there would be all sorts of procedural 'end runs' around the plain meaning of the law.

Furthermore, the law forbids even the consideration of international or Sharia law. Suppose Sharia law, international law, or (from the amendment:) "the legal precepts of other nations or cultures" were invoked via a contract clause. How could a judge possibly apply that law without considering it?

* The full text of the proposed amendment [pdf] says that the Oklahoma state courts can, when necessary, look to the law of another state so long as that state's law doesn't include Sharia law (nothing said about international law in that clause of the amendment).
posted by jedicus at 9:14 PM on September 19, 2010


Yeah, the absence of inclusion of tribal law is a glaring omission in the text of that statute; that omission, combined with "The courts shall not look to the legal precepts of other nations or cultures" is a huge FU to our state's tribal governments. If I were being generous, I would suggest that maybe they thought that tribal law would be covered by federal law and common law (there is, after all, a tremendous amount of federal common law regarding tribes and tribal members). Sadly, I fear my generosity is misplaced.

Regarding conflicts of laws issues, we're generally a 2d Restatement state. The statute governing choice of law in contracts is its own beast. 15 OS 162 states:

"A contract is to be interpreted according to the law and usage of the place where it is to be performed, or, if it does not indicate a place of performance, according to the law and usage of the place where it is made."

So I could imagine scenarios in which SQ 755 would create a conflict with this particular statue if a particular contract called for the application of international or Sharia law.

I suppose that someone arguing to abrogate a choice of law provision in a particular contract that adopts Sharia Law could argue that the choice of Sharia law as a choice of law is unenforceable because the State Constitution makes it illegal?

On the flip side, for someone arguing the unconstitutionality of the amendment, maybe we'd see challenge based upon the contracts clauses of both the federal and state constitutions. Also, how would this withstand 1A challenge. It's not really a law of general applicability, is it? Even so, how would this even pass a rational basis level of review? For example, if the constitutionality of the SQ 755 amendement were litigated in the context of a contractual choice of law provision incorporating application of Islamic trade law, how would one supporting the amendment argue that there's any rational basis for such an overinclusive amendment that restricts the rights of private parties to form a contract governed by Islamic law which includes provisions prohibiting unequal exchanges or unfair advantage in trade?
posted by Dr. Zira at 10:39 PM on September 19, 2010


One line summary: pre-nups are a MANDATORY requirement of Sharia law, not optional. The Pakistani case described is atypical, the Jordanian one much more common.

The long version:
Sharia law, as practiced in Pakistan:

1) actually requires a prenuptial contract, stating what kind of settlement (haq mehr will be made upon the wife. It also must be specified whether the haq mehr will be paid at the time of marriage, or only in case of the marriage being dissolved;

2) by default, requires that the man get his first wife's permission before contracting a second marriage;

3) includes a clause where it must be specified whether the woman retains the right to divorce. Whether or not this right is retained, and many women in fact waive it at the time of marriage (incomprehensible to me, but they do it), the right to khula is still there. This means that the wife has to convince a judge that her situation merits dissolution of the marriage.

So, while many women are denied their legal rights due to the fact that education of any kind is limited, and more limited for women, the author of the article is quite right that in many ways Sharia law protects women in ways that secular law does not.

The terms of the Jordanian woman's contract were not unusual. They were actually the default, for anyone who has an even cursory knowledge of Islamic marriage law. The only thing that's interesting in that story for me is the way you can make a contract written within one legal framework work in another.


The Pakistani case that she talks about, on the other hand, is more interesting to me. I sympathize with her personal investment in her aunt's story. Her description is disingenuous, though. That no one in her family bothered to read that the imam had struck out (am I using that correctly?) the clause about requiring permission for contracting a second marriage is just bizarre. The standard marriage contract form has this preprinted into it, so it would be fairly obvious that it had been crossed out.

Polygamy is widely frowned upon, and men who contract a second marriage without the first wife's permission can be sent to jail. That they are rarely sent to jail is similar to the way that wife-beaters seldom go to prison in most of the world, including the US, UK, and Western Europe.

She's right in that many times, the legal protections that Sharia, even as it is practiced in the Muslim world right now, are often subverted by ignorance or malice, and that it is easy to do so in a patriarchal society where many, maybe even most, women do not feel in control of their lives. But I see that as a social problem, rather than a legal one.
posted by bardophile at 10:47 PM on September 19, 2010 [4 favorites]


msalt: osracism, yes. persecution, unlikely. The views of Pakistani society about divorced women cover a pretty wide range. There's the Scarlet Letter camp, the "divorce is the worst of all permissible things" camp, the "oh that poor dear" camp, the "you're well rid of the jerk" camp, I could go on forever. Depending on how traditional "Zainab's" family is, being divorced could be extremely uncomfortable, socially. That's not quite the same thing as being in danger.
posted by bardophile at 10:51 PM on September 19, 2010


But I see that as a social problem, rather than a legal one.

That's a valid way of looking at the law, but there are theories of jurisprudence that would argue that legal and social issues aren't so easily compartmentalized. See, for example, critical legal studies.
posted by jedicus at 6:28 AM on September 20, 2010


the author of the article is quite right that in many ways Sharia law protects women in ways that secular law does not.

Wait a minute. The article makes it sound like in the US, if you don't have a prenup, no one owes each other anything after a divorce. That is not accurate. A prenup, if there is one, will generally control what the court will give to whom. But in the absence of a prenup, by default, there's alimony, distribution of property, and child support. Of course, you'd have to look at the specific state's law, but I doubt there's even one state in the US with a flat rule against ever awarding alimony! Wikipedia's entry on alimony reform in the US doesn't mention anything of the sort.

The author apparently went into this whole litigation and the article with a preconception that these days in the United States, what with no-fault divorce and everything, women don't have any rights because they're expected to be equal to men. It is certainly possible to make an intelligent critique of family-law reforms as ironically hurting women when they were supposed to make things more equal. For instance, some people criticize no-fault divorce as bad for women. (A bread-winner husband who's abusive can more easily use divorce as leverage when divorce is easy to get.) But her critique seems pretty disconnected from actual facts.

I'm surprised that this article has been approvingly linked on such respected sites as Arts & Letters Daily, 3QuarksDaily, and Metafilter. Is this like the Sokal hoax except with Sharia and feminism instead of quantum mechanics and postmodernism?
posted by John Cohen at 6:53 AM on September 20, 2010


I can't say I've heard of much in the way of alimony lately, at least in the case of childless marriages where both (former) partners are employed. No alimony seems to have become the default, although it is by no means never awarded.
posted by wierdo at 7:51 AM on September 20, 2010


Metafilter: Well put, weirdo.
posted by straw man special at 9:35 AM on September 20, 2010 [1 favorite]


1) That's a valid way of looking at the law, but there are theories of jurisprudence that would argue that legal and social issues aren't so easily compartmentalized. See, for example, critical legal studies.

Yes, it's true that you can't really compartmentalize them. And I wasn't clear enough in indicating that I recognize the overlap. But in this case, I guess I think the remedy does not lie in amending the specific laws under discussion as much as it does in making sure that people are educated in what their rights are and why it's important not to sign away your legal rights.

2) I just went back and looked at my own marriage contract, which was just the standard Pakistani form, and the only thing about multiple marriages is, (I've translated from the Urdu) "Whether the bridegroom has any existing wife, and, if so, whether he has secured the permission of the Arbitration Council under the Muslim Family Laws Ordinance 1961, to contract another marriage:"

To get the Arbitration Council's permission, you have to have your wife's written consent. So in the case of the author's aunt, documents had to have been falsified, and then she had to have made the choice not to sue her husband or charge him with fraud.

I guess I'm irritated with the author for not really knowing what she's talking about in terms of Sharia Law in Pakistan. It sounds like she took whatever she absorbed as a child about her aunt's situation and didn't bother to research what the legal realities were.

3) The article makes it sound like in the US, if you don't have a prenup, no one owes each other anything after a divorce.

I think her point is more that if you've been married for less than a year, as her client was, and don't have kids, you're not going to be seen as having much grounds for demanding support. I have no idea how accurate this perception is.

4) I think she also doesn't really deal with the fact that Zainab's difficulties, IF the Jordanian contract had not been enforceable in the US, would have had to do with having signed a contract under one set of social assumptions, but living out her marriage in a legal system framed around a completely different set of social assumptions. Her husband would not have been nearly as quick to divorce her if he were back in Jordan; there would be tremendous social pressure on him not to do so. So this is another interesting place where the social/legal interaction is significant.
posted by bardophile at 9:59 AM on September 20, 2010


There was a well-written editorial by Andrew Silow-Carroll in the New Jersey Jewish News about a month ago, that might be of interest: Sharia-Phobia
When did the war on global Islamist terror become a war on American Muslims? When did our faith in the American way morph into fantasies of American weakness and Muslim invincibility? And why would any Jew, whose people were once reviled in this country and pushed to the margins of its banks, academic institutions, and government agencies, buy into this bigotry?

An American patriot once said, “America counts millions of Muslims amongst our citizens, and Muslims make an incredibly valuable contribution to our country. Muslims are doctors, lawyers, law professors, members of the military, entrepreneurs, shopkeepers, moms and dads. And they need to be treated with respect. In our anger and emotion, our fellow Americans must treat each other with respect.”

That patriot was George W. Bush. He said it on Sept. 17, 2001. Now, nearly 10 years later, Newt Gingrich probably considers him a radical.

posted by zarq at 11:00 AM on September 20, 2010 [2 favorites]


Dr. Zira: I'm sorry, but I find your legal analysis REALLY unconvincing. I don't think you've thought this through at all. Assuming that you have, I'm waiting with anticipation for your masterful explanation for how an amendment to the Oklahoma constitution can be found unconstitutional "based upon the contracts clauses of [the Oklahoma] constitution[]." The federal constitution, maybe (though I'm unaware that the federal contracts clause has ever been interpreted so broadly as you'd like). But the state constitution? Is the OK contracts clause somehow carved out from the OK amendment provision, like Senate representation and slavery were in the U.S. constitution?
posted by thesmophoron at 9:28 AM on September 21, 2010


thesmophoron: You don't have to preface your argument with "I'm sorry" - you raise strong points which need to be raised! I was just sort of brainstorming legal theories, and I agree with you, I think that it would be hard to argue its invalidity under a federal contracts clause theory due to the post-Lochner jurisprudence, but certainly not untenable because, as I mentioned earlier, how does it even survive rational basis review? Not the strongest argument under the US Constitution, but I was throwing that out as a more practical argument that would bypass the hot button issues of religion that this referendum was clearly intended to inflame.

Furthermore, while not ideal, I don't think an argument for a conflict with other inalienable rights under the state constitution is as untenable as you suggest. For example, if want wanted to make an argument founded on economic policy (again, thereby avoiding the hot button issue of religion and avoid the trap of being framed as either "pro Islam" or "anti Islam") one could form a colorable argument that this proposed amendment directly interferes with an inalienable right. I'm not saying it's the best argument, and I'd certainly not want to hang my case on it, but it's just one argument I'd offered up for discussion.
posted by Dr. Zira at 10:38 AM on September 21, 2010


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