Fariha and Mohammad Ashfaq's marriage was brief. They wed in their native Pakistan in December 2007 but spent only a few months together before Mohammed returned to his home in Fort Worth. They lived together for a few additional months in Texas after Fariha acquired a visa in June 2009, but when they returned to Pakistan that November to attend a wedding, the couple separated and Fariha moved back in with her family. They never reconciled.
There's nothing particularly remarkable about the Ashfaqs' split. People get into bad marriages, or else good marriages turn sour. What makes the demise of their union unusual is that it has become entangled in the perennial push by conservative Texas lawmakers to keep foreign law (that means Muslim, not, say Belgian) out of the state's courts. Recently a trio of state representatives from North Texas — Matt Rinaldi, Rodney Anderson and Kenneth Sheets — cited the Ashfaqs in a guest column they penned for The Dallas Morning News. The column, a response to a July 31 editorial castigating firebrand Irving Mayor Beth Van Duyne for "pandering to the right," didn't run in the paper, possibly because the DMN is a liberal rag but more likely because the editorial, which portrayed Van Duyne as a demagogue skyrocketing toward national prominence on a spaceship made of the Tea Party's xenophobic fever dreams, was on point. It did, however, find a friendlier forum in the arch-conservative Empower Texans, which published an excerpt of their piece which reads, in part:
Contrary to the DMN’s erroneous claim that decisions rendered through a Sharia tribunal are “in no way binding in an American court and can’t trump American law,” Texas state courts, such as the Fort Worth Court of Appeals in Jabri v. Qaddura, allow parties to choose Sharia law, enforce rulings of Islamic tribunals in Texas courts, and waive appeal. This effectively allows an Islamic court to operate parallel to our state courts.
This parallel Sharia court system puts women at risk of laws that treat them unequally or sanction violence. For example, despite Texas’ common law prohibition on application of laws that violate public policy, in Ashfaq v. Ashfaq, the Houston Court of Appeals upheld a discriminatory Islamic law allowing a husband to divorce his wife by saying “I divorce you” three times outside her presence.
To be sure, having a husband say "I divorce you" three times — known as a talaq divorce — is a manifestly terrible way to adjudicate anything. But nothing about the Ashfaq case is nearly as clear-cut as Rinaldi et al make it seem. For one, Pakistani law on talaq divorces requires the husband, after saying his divorce mantra, to also provide a copy of the divorce deed to his wife, then the chairman of a "Union Council" who, after a 90-day period of arbitration with an eye toward reconciliation, will finalize the divorce, which isn't categorically different from an American husband declaring that he wants a divorce and then walking into the courthouse to file a petition in district court. And the Texas courts that considered the Ashfaqs' case weren't "uph[olding] a discriminatory Islamic law." They were deciding whether there was still a marriage for the Texas court to still dissolve, which necessarily involved the consideration of Pakistani family law.
According to court testimony, Mohammed told Fariha that he wanted a divorce eight days after they had arrived back in Pakistan in November 2009. Fariha denied that Mohammed had gone through the procedural steps necessary to finalize the divorce, but she acknowledged that she did receive divorce papers by November 23. In any event, they went their separate ways. Mohammed was back home in Fort Worth by the end of the month. Fariha stayed with her family for a few months but came back to the U.S. in April 2010 and settled in Houston. Five months later, Mohammed remarried in Pakistan and brought his new wife to Texas to live with him. The couple had been apart for almost two years when, in October 2011, Fariha filed for divorce in Harris County.
Eugene Volokh, a UCLA law professor who wrote about the case in April for his eponymous Washington Post legal blog, says the Ashfaq case is one in which a court "cannot possibly not look at foreign laws to figure out what's going on." Either the court decides that Pakistani divorce proceedings are so manifestly unfair that they cannot be accepted or it decides the divorce was legit, meaning there would be no marriage left for the court to dissolve. The court would have to make the same decision about the applicability of foreign law whether the couple had been divorced in England or Bahrain or Belgium.
Both the district court and, ultimately, the First Court of Appeals in Houston, examined family divorce procedures in Pakistan; weighed the testimony of Mohammed, who had expert witnesses testify to the nuances of Pakistani family law, and Fariha, who did not; and decided that the divorce had been fair enough to be acceptable. The First Court concluded that:
Inherent in the right to due process is “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action . . . .” Mohammad’s expert witness distinguished the traditional Muslim talaq from the requirements for divorce under the Pakistani Ordinance, which requires notice to the wife and the Union Council and authorizes the imposition of criminal penalties for failure to comply with those requirements. The Ordinance imposes a mandatory 90-day waiting period before the divorce is final to allow for reconciliation efforts during that period and facilitates these efforts by providing for constitution of an Arbitration Council for reconciliation upon request. The record contains conflicting evidence as to whether Mohammad timely served Fariha with notice of the divorce as required under the Ordinance, but Fariha admitted to receiving the notice before the divorce became final. We will not disturb the credibility determination supporting the trial court’s implicit conclusion that the procedure prescribed by the Ordinance satisfied due process.
...Through his legal expert, Mohammad proffered evidence of the [Dissolution of Muslim Marriages Act, 1939] which permits women to initiate divorce based on, among other things, the husband’s abandonment, polygamy, imprisonment, or mistreatment.
At least one legal commentator has characterized the Pakistani divorce laws as providing an avenue beyond traditional Islamic law that can be used to safeguard and promote “the fundamental rights guarantees of contemporary constitutions and the modern ideas of social justice that have influenced them.” We also note that the U.S. State Department considers a Pakistani talaq divorce obtained pursuant to the Ordinance — as opposed to a “bare talaq” — as valid proof of marital status for immigration purposes, and it presumably recognized the validity of this particular divorce in approving the visa for Mohammad’s current wife.
The other case the lawmakers reference, Jabri v. Qaddura, is equally unsatisfying as a piece of anti-Sharia propaganda. It, too, involves a messy divorce, but the issues arising from this one were adjudicated not in Pakistan but in Richardson by a religious arbitration panel, the Texas Islamic Court.
According to the 2003 decision by the Second Court of Appeals in Fort Worth, Rola and Jamal Qaddura were married on September 3, 1993. When they wed, they signed an "Islamic Society of Arlington Islamic Marriage Certificate," which listed a dowry of $40,000, payment of which was deferred, plus half the value of their modest Arlington home. Rola filed for divorce in 1999 and subsequently sued Jamal's brother, who she accused of laundering her brother's assets to keep them out of the divorce proceedings. Both Jamal and his brother sued Rola back, with Jamal seeking damages of $1.25 million for "defamation and false light," and Jamal also later sued Rola's parents seeking a protective order. Like we said, messy.
In 2001, the court handling the case ruled that the "purported Islamic Dowry agreement" did not qualify as a prenuptial agreement under Texas law, but the divorce itself, custody of the two children, the division of property and a tangle of other issues remained unresolved. To address the remaining issues, all five parties — Rola, Rola's parents, Jamal and Jamal's brother — signed an agreement to have the issues resolved by the Texas Islamic Court, as did their attorneys. There followed a disagreement over the scope of the arbitration, which kicked proceedings back into the courtroom. The trial court denied Rola's motion to force her husband and brother-in-law to arbitration but the appellate court reversed that decision, ruling that the arbitration agreement was valid and that it encompassed both the outstanding issues and the dowry agreement the court had already ruled on. Put another way, the court, based on an examination of agreements based in Islam, ruled in favor of the wife.
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Whether one agrees with the appellate courts' interpretation of the facts, they hardly signal a blind deferral to some grossly discriminatory form of Islamic law, much less evidence that Sharia poses a threat to the American justice system. Rather, legal experts characterize them as routine and unavoidable. Volokh considers Sharia to be "quite biased in various ways" against women, particularly in family law. But that's different from saying that U.S. courts shouldn't recognize divorces granted by Islamic countries, particularly when both of the parties clearly want to be divorced and one of the parties has since remarried. Volokh thinks there's room for narrowly tailored legislation that could protect the interests of parties "sufficiently connected to the U.S." (say, living in the country as permanent residents) from having disputes handled in other countries without their consent, but a blanket ban on the application of foreign or Sharia law in U.S. courts would be unworkable both because of cases like the Ashfaqs' and because there are countless "utterly routine and utterly necessary applications of foreign law in uncontroversial business contexts" that would be impossible to resolve without turning to the laws of other countries.
Michael J. Broyde, a law professor and senior fellow at Emory University's Center for the Study of Law and Religion, says religious mediation is routine and generally uncontroversial. "It's important to understand that almost all uses of religious law by courts in the United States come into court because the parties themselves bring it in," he says. "Courts almost never independently make reference to religious law." In instances in which disputes involving religious arbitration wind up in court, the court adheres to the same standards as it does in secular mediation. That is, the court will enforce financial remedies or the distribution of property within the scope of the arbitration agreement but not anything that would violate one party's due process rights. So if a husband and wife sign a prenuptial agreement that winds up in arbitration and all the property goes to the husband, that will generally be enforced by the court. However: "If a religious court says, 'Since you dishonored your husband, he can rape your sister,' that's not enforceable in America." Broyde continued, "Nor would it be enforceable if Joe, a hypothetical secular truck repairman two parties appointed to adjudicate their dispute, ruled that one of the parties should be punched in the face as compensation for a wrong."
Broyde specializes in Beth Din, a national arbitration system for Orthodox Jews whose decisions are widely enforced by U.S. courts. Numerous other religions, including many Christian denominations, have similar, if less well developed, systems for addressing disputes among members. Pew has compiled a fairly extensive list.
None of the lawmakers responded to requests for interviews. Presumably they would have preferred a Texas-style divorce in the Ashfaq case. Perhaps it'd be better if U.S. courts stop recognizing Islamic marriages as well, as that's the logical extension of the argument. And in the Qaddari case, one supposes they would have kept the wife from going through the arbitration she was pushing for on the grounds that it would be discriminatory. Neither of which seems like a more just outcome.