When we NEED Shari’a Law in the United States

Dun, dun, DUUUUUN!

When there was paranoid talk of the ‘creeping Shari’a‘ in the U.S. I responded with the usual scoffing and eye-rolling and exasperated exclamations of you totally do not even know what Shari’a is and also that is so not even happening. Of course, that last bit would be irrelevant—it doesn’t matter what Shari’a law actually is because the U.S. has its own Constitution and that’s pretty much that—except that nearly all of the arguments against Shari’a revolved around what it was believed to be (and were steeped in Islamophobia.) Predictably, the paranoia focused on what this would mean for women, because the only time men pretend to care about women’s rights is when they can take advantage of the cause and conveniently use it to exert their racist agendas.

So as someone who gives an actual fuck about women’s rights and knows more about Islam than anyone on Faux News, I saw immediately how the occasional, individual application of Shari’a law would empower immigrant Muslim women against men who abuse them if these women are from educated backgrounds and had power in drafting their own contracts and interpreting Shari’a law—especially, crucially, during times when the American legal courts failed them.

Rafia Zakaria (via Clarisse Thorn) writes about Zainab, a Muslim woman who was almost immediately divorced, abused, raped, and abandoned by her husband (who, by the way, had a mistress) upon entering the United States, where she was utterly powerless. Luckily, her marriage contract under Shari’a Law, drafted by an attorney with translations in English, entitled her to ten thousand dollars if her husband divorced her; the contract also dictated a closed marriage: he could not marry multiple women, nor could he have a mistress without paying penalties for violating his marriage contract. Unluckily, Zainab was in America now, where a contract under Shari’a Law could not be enforced. American women–who divorce and marry freely with sexual and financial independence and without social stigma–do not need these protections, and the court system reflects this society: reasons for a divorce like adultery or abandonment are understood as irrelevant:

And so I faced the task of explaining an American legal reality of freedom and consent to a woman who had been married under circumstances that could not have been more different. Zainab expected spousal support and her argument for it was simple: she had given up everything to be married and feared the pain of an ineradicable stigma if sent back to Jordan. Again and again, she would ask me about her rights under the Islamic marriage contract, and repeatedly I would tell her that an Indiana court would not enforce a marriage contract based on Sharia law. Then she would exclaim, aghast, that if she could not get any rights or restitution under Islamic law, what indeed were her options under American law? My response, that all she would receive from an American court was a legally recognized divorce, no property, no spousal support, and no amount awarded for repudiating the marriage contract, was impossible for Zainab to digest. “How can this be?” she would ask. “This is America. Women are supposed to have rights here. How can a judge tell me that I deserve nothing after having been abused and abandoned?”

And so there I was, with my first Muslim client, confronting a predicament where the American legal tools at my disposal did not promise the best result for my client, a Jordanian Muslim woman. In my legal training, as well as my academic work, my focus had been almost entirely on the task of introducing women just like Zainab to the idea that the American legal system allowed them a level of equality and self-realization that was not yet available in Muslim countries. What indeed was fair in this case? The acknowledgement that Zainab had been wronged and deserved restitution, or treating her like any other American woman seeking a divorce? Should Said be treated like any other American husband whose marriage hadn’t worked and who wanted to be with another woman? Should Zainab’s unique situation as a Muslim woman whose chances of remarriage were severely affected by her divorce be considered in the case or ignored? More importantly, should Said have to pay to support a woman he had only been married to for a little over a year?

(Read entire article.)

The American court system was not going to bring Zainab justice. But Islamic law, *designed* for women to conquer intense patriarchies, would afford her incredible victory.

When women move to the United States (naively trusting men to be their protectors), they bring with them the unjust power structure that existed in those countries—into a country in which they have even less influence because nothing is familiar to them. They also bring with them the instruments to defeat these injustices. And the appropriate way to level that unjust power structure is use against it the very interpretations that have developed from within those societies to rightfully restore power to women.

The most valuable thing to learn from Second Wave feminism is that while it is important for all women to be allies, to stand in solidarity, real freedom and equality comes from within each community. Empowerment comes from within. Sometimes, a woman needs to get the hell out of her sister’s way. Instead of raging about burkas and hymens, she needs to recognize that her colonialist mentality is destructive and regressive and virtually inapplicable to the women she is trying to liberate. She needs to realize that they don’t need her help. She needs to understand that there are things she doesn’t, that what she knows as the exercise of freedom is evolved from her own society and is not applicable to others under different power dynamics–in the same way that a man who has his own self-absorbed ideas about equality doesn’t understand why it’s not okay to joke with women about violence, even if he’d do it with a man, because he’s got his head too far up his ass to notice that you have to establish level ground (subdue the amount of violence against women by men) before same treatment / consequences or it isn’t equality. Characteristic privilege.

The fact that human rights are universal is exactly why they can be extracted from every society, and why simply eradicating significant ideologies (like religion) that were introduced to respect these rights is in fact to cut off access to these human rights for the women who need them. Due to differing levels of privilege, the message is universal, the application differs.

You’ve got 3 and 5, you don’t add 2 to both of them to make them 7.

18 thoughts on “When we NEED Shari’a Law in the United States

  1. Khadeeja

    I remember reading this article and struggling with it from a legislative perspective. Firstly, let’s put marital contracts aside- if a contract is concluded in another country is it never enforceable outside those borders? Secondly then; isn’t the issue of wider enforceability of legal contracts betwen two parties rather than Shariah law as such. Also, how ubiquituous are such contracts as detailed in the example- I know you addressed this point in one of your first paragraphs regarding women of a specific context needing this. But aren’t laws about general rules? “Shariah” laws would be too wide to blanketly be upheld. Within South Africa we have this Muslim marriages bill at the moment which will make muslim marriages equivalent to civil marriages (i.e. you don’t need to register at a government office as well) but with it comes “Islamic” principles like iddah on the woman and the inheritance and divorce settlement periods.

    Like

    1. It depends on what the contract is attempting to enforce–in this case it conflicted with general divorce in the United States (demanding money from your ex after only two years would be seen as absurd) though I’m not sure why the writer was worried exactly, because I was immediately certain there wouldn’t be a question that the contract would act as a typical prenuptial agreement. But if a couple has a contract that permits the man a polygamous marriage, for example (drafted by an uneducated woman), it wouldn’t be legally enforceable in the United States. It’s not just certain interpretations of Shari’a Law that highly protects women–it’s the U.S. legal system that protects them from unIslamic and patriarchal interpretations of it by enforcing only certain interpretations and providing women with a court system to enforce these contracts.

      Americans are more pre-occupied with where things come from than what they actually are. It wouldn’t matter if the issue is the wider enforceability of legal contracts if the contract is SHARI’A LAW OMG.

      Like

      1. Since I’m currently going through a divorce in the US, I’ve been learning a bit about this issue. Actually, “demanding money from your ex after only two years” is not seen as absurd in the US, though it may vary by state. In California, a spouse is eligible for spousal support for half the length of the marriage, even for short marriages, if there was a large disparity in the couple’s incomes. The amount, however, is at the discretion of the judge. A prenuptial agreement can affect whether spousal support is given or not, and how much, but the judge still has authority on whether or not to honor the prenup (even if it was written in California). I am surprised that in the case cited above the Islamic wedding contract would not have been treated as a valid prenuptial agreement, but that may have more to do with specific laws in Indiana than with it being an artifact of “shariah law”. A woman marrying in the US could certainly write a prenup that would be both Islamically valid and follow US laws, but depending on the state the judge still might not honor it.

        Like

        1. Yes, I didn’t understand the lawyer’s concern either–but I guess $10,000 is a strange amount for a marriage that lasted less than 2 years, and her anticipation had to do with whether the judge would rule the contract null because it conflicted with standard divorce laws in Indiana and Shari’a Law can’t be enforced. I’ve never lived in any state other than CA (and probably won’t be divorced any time soon being unmarried and all =P) so I don’t know how much you’d get from a marriage that lasted less than 2 years in Indiana. According to the article it would be a “no fault” divorce.

          Like

  2. that’s a very interesting view on things, haven’t thought about it so thank you for this informative post :)
    I have a question: do you think that in this particular situation she would be able to extract her rights from her husband via a local mosque? I think that the Islamic marriage contract is valid anywhere in the world, so do you think it would be possible for the local mosque to apply some pressure on the husband to do what he’s obliged to do?

    thanks again, I’ve learned loads reading your blog Nahida :)

    Like

    1. Unfortunately, no. I’ve tried this.

      I knew a couple who wanted to get married, but the father of the young woman wouldn’t “allow” it because she was (unwillingly) engaged to someone else (as though her father had any right to keep her from a consenting marriage in which the man is perfectly Islamically eligible)… It was a race issue, and the father simply didn’t want to go through the “embarrassment” of breaking of the previous engagement. Even though it was never his to make.

      Anyway, I told the young man to call up the most conservative imam he possibly knew and request that the imam attempt to convince her father to “allow” her to marry him… and he did, and the imam called, and it didn’t work. Her father only continued being *furious* and yelled at the imam for “interfering with how he raised his daughter.” (Goes to show exactly how religious these types are…)

      Mosques can inform women about their Islamic rights (such as the right to marry whomever they please without the permission of a guardian) but they can’t enforce it–they were never really meant to be that kind of institution.

      Like

      1. thanks for the explanation. I understand that mosques were not meant to be that kind of an institution just was unsure whether they do or would be willing to interfere and apply some pressure on the man to fulfill his duty.
        it’s a sad story that you told about the young man :(

        Like

    2. One could use a Muslim mediator for this purpose, but that still only works is both parties agree to use mediation rather than go to court. If the husband knows he can get out of paying by going to court, he would likely refuse mediation.

      Like

  3. Coolred38

    If I had been living in the US and married to my ex for the 20 years I was…I would have gotten alimony.. half the property we have etc etc…however, in Bahrain I got absolutely nothing upon divorce after 20 years…except my freedom. Which is all I really wanted…but in this instance…Sharia Law did nothing for me…and truth be told..it never did the entire 20 years I was married to him. All it did was make me a prisoner…a hostage…a victim to my ex’s actions.

    Like

    1. Yeah, the article has an example at the beginning of when it fails to protect women as was its original purpose as well.

      Unfortunately the “default” interpretation of Shari’a Law (the one enforced in most countries) is men’s… a woman has to make specifications in her marriage contract that she shouldn’t even have to in order to swing it back in her favor. It’s a device stolen by patriarchy.

      Like

      1. One potentially positive “default” in an Islamic marriage is that the woman should never have to PAY spousal support. In the US, she might. Probably not common in Islamic countries, though, that a woman would make more money than her husband.

        Like

  4. How sad for that lady! It seems she was under the impression that her Islamic agreements would hold up in American courts. Do you think her ex tricked her into believing this? Too bad their contract couldn’t count as a prenup.

    Like

Discuss.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s