From The Volokh Conspiracy and Alliance Defense Fund:
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Islamic Law in U.S. Courts
Eugene Volokh • October 20, 2010 6:54 pm
I just came across an interesting case, Rahman v. Hossain (N.J. Super. Ct. App. Div.), which was apparently handed down June 17, but which just appeared on Westlaw. An ex-husband was demanding the return of a $12,500 “mahr” payment that was made at the time of the marriage. The parties had apparently agreed to be married “under the law of Islam,” so the court heard evidence from an expert about whether Islamic law called for return of the mahr under certain conditions, and concluded that it did; therefore, the ex-wife was required to return the money.
As I’ve argued before, I think courts should indeed generally enforce religiously inspired contracts, whether prompted by an Islamic marriage, a Jewish marriage, or other events, so long as the contracts expressly set forth obligations in terms that courts can enforce while applying neutral principles of contract interpretation law. Courts should also generally be open to enforcing arbitration agreements where the arbitrators are applying religious law, pursuant to the terms of a contract that calls for such law (though I’m not sure how U.S. law would treat such arbitrations if there is evidence that the tribunal may have applied sex-discriminatory or religion-discriminatory procedural rules).
I also think courts should be open to applying, say, Saudi law — which incorporates Islamic law — when the normal choice-of-law rules (where related to contracts, torts, family law, or what have you) call for the application of Saudi law, just as similar rules call for the application of Canadian law or Mexican law in other cases. If there is some public policy objection to a particular aspect of Saudi law, that aspect wouldn’t be enforced (just as speech-restrictive European law wouldn’t be enforced in defamation cases filed in U.S. court); but that is no reason to generally reject the application of Saudi law in other contexts. The courts wouldn’t be deciding what true Islam calls for, but just evaluating what legal rules are actually part of the Saudi justice system.
But I do think that there might be First Amendment problems when the court is itself being asked to determine what Islamic law calls for, just as there are such problems when a government agency is deciding what is kosher. (Check out this interesting case dealing with this as to a Hindu wedding.) I’m not sure about this; perhaps in contract cases the court could avoid unconstitutional decisions about what Islamic law really requires by instead asking what the parties likely contemplated. But in any event, I think this is where a court might be skating close to the constitutional edge.
Here is an edited version of the decision:
Defendant Obhi Hossain (“the ex-wife”) appeals certain aspects of a Final Judgment of Divorce entered by the Family Part on June 19, 2009, following a default proceeding. In particular, the ex-wife seeks to vacate the trial court’s disposition of equitable distribution, specifically its directive that the ex-wife refund to plaintiff Arifur Rahman (“the ex-husband”), the sum of $12,500 that had been paid to the ex-wife at the time of their wedding. We affirm.
The pertinent facts may be readily summarized. The parties were married in the State of Maryland on September 9, 2006. It was an arranged marriage, with both parties being of Bangladeshi descent. The ex-husband was from New Jersey and the ex-wife was from South Carolina. At the time of the marriage, both spouses agreed to be united “under the law of Islam.” Pursuant to Islamic customs, a sum of $12,500 was paid to the ex-wife as an initial payment of “sadaq” or “mahr” by the ex-husband or his family.
The marriage was short-lived, and the parties cohabitated only briefly. According to the ex-husband, the ex-wife would sleep throughout the day, frequently take anti-depressants, refused to look for a job, refused to engage in marital relations, and did not sufficiently attend to her personal hygiene. About one year into the marriage, the ex-wife moved back to South Carolina and did not return to New Jersey.
The ex-husband filed a complaint for divorce or annulment in the Family Part in December 2007. The ex-wife, then represented by counsel, filed an answer and counterclaim, but her pleadings were ultimately suppressed and she ended up in default status. The default was not cured and the matter was scheduled by the court for a default hearing, pursuant to Rule 5:5–10, on issues of equitable distribution.
On April 6, 2009, the trial court conducted a default hearing. At that hearing, the ex-wife and her then-attorney were present, but, because of the default posture, they did not present proofs or otherwise participate.
The ex-husband presented at the default hearing expert testimony from a New Jersey attorney knowledgeable in Islamic law. The court accepted him as an expert. Among other things, the expert testified that under Islamic law a marriage is a civil contract and that the payment and retention of the sadaq is contingent upon neither party having fault that leads to the termination of the marriage. The expert opined that, under Islamic law and customs, the court would have the authority to order the $12,500 initial payment of sadaq to be returned, if it made a finding that the ex-wife was “at fault” in precipitating the divorce. The court also heard testimony from the ex-husband describing the circumstances that preceded the marriage and those which led to its demise.
Following the default hearing, the trial judge issued a letter opinion. In that opinion, the judge denied the ex-husband an annulment, finding that there were no misrepresentations that would suffice to satisfy the statutory grounds for such relief under N.J.S.A. 2A:34–1(1)d. The judge did grant a judgment of divorce to the ex-husband, because of the ex-wife’s “failure to engage in marital relations, her unilateral move out of state, and her alleged failure to care for her personal hygiene[,]” all of which the judge determined to constitute extreme cruelty under N.J.S.A. 2A:34-2c.
The judge then turned to the question of the refund of the sadaq. Relying specifically on the uncontroverted testimony of the expert, the court found that the ex-wife’s “undisclosed mental illness constituted an impediment to the marriage under Islamic law.” Accordingly, the judge granted a judgment of divorce, with a finding of fault on the part of the ex-wife. The judge also found that the ex-wife had “omitted information of grave consequence at the time the marriage was entered into.” For these reasons, the judge ordered the ex-wife to return the $12,500 within sixty days....
We are ... unpersuaded that the trial court erred in finding a sufficient circumstantial basis to order a refund of the $12,500 payment for the sadaq. The ex-wife provides no contrary legal support to the expert’s assertion, which was adopted by the trial court, that under Islamic law and customs the payment of a sadaq is refundable if there is a proven impediment to the marriage such as a spouse’s undisclosed mental illness. See also Alicea v. New Brunswick Theological Seminary, 128 N.J. 303, 313 (1992) (noting the relevance of religious customs and principles in certain civil disputes, particularly with respect to contractual promises that can be decided by applying neutral principles of law). Having failed to cite to contrary legal authority, the ex-wife instead challenges the sufficiency of the factual proofs of fault and impediment that were adduced before the trial judge.
At the default hearing, the ex-husband testified that, after she moved in with him, his new spouse was “sleeping all through the day” and that he discovered she was “taking a depression medication without prescription.” There was also testimony from the ex-husband about his spouse’s refusal to engage in marital relations or to seek employment, and her ultimate departure and relocation to South Carolina. The ex-wife denies, again without citation to any sworn proofs in the record, that she has ever taken medication without a prescription. She also complains that the ex-husband’s testimony did not mention the identity of the medication she was taking, the dosage amounts, or the frequency. We do not regard the absence of those additional details as warranting relief to the ex-wife on this appeal. The trial court obviously perceived that the ex-husband’s testimony was credible. Although we understand that the ex-wife now contests the trial court’s factual findings, there is ample and substantial credible evidence in the record sufficient to support those findings. Moreover, if the ex-wife wished to contest her spouse’s factual assertions, she should have complied with the Court Rules and not allowed her case to lapse into, and remain in, default.
In sum, we sustain the Family Part’s determinations in all respects, substantially for the reasons set forth in Judge Katherine R. Dupuis’s letter opinion dated May 13, 2009....