Sharia In America

[Carborendum]

I said this had happened a couple of years ago and no one believed me. 

But apparently, that was only the beginning of the case.  It was decided just last month. (or it could have been a separate case).

https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=4b0b5653-b3ae-4689-9a9d-1367516012d4&coa=coa05&DT=Brief&MediaID=bba57f77-3765-4361-aacb-df368800ec01

This is a mighty fine line.  I wonder which side of that fine line that this case lies.

• The Muslim couple signed some paperwork that is common in Muslim marriages.  One point of contention is that it is very common to sign two copies of the same marital agreement.
• Unfortunately, the husband (to be) decided to slip in a pre-nuptial agreement (in lieu of the second copy) which stated that a divorce would be handled through a 3-Imam panel of arbiters which considers a woman's testimony as "half" the weight of a man's.
• The wife claims she was hoodwinked into the pre-nup since she believed it to be the customary second copy of the agreement.

The judge refused to listen to the wife's testimony and summarily decided to send the case to the Islamic court for arbitration.

For those who speak legalese (ahem -JAG -) I probably didn't use the word "summarily" quite right here.  But it's close.

Edited July 7, 2021 by Carborendum

[Vort]

Very interested to hear an informed legal  opinion on this.

[LDSGator]

1 hour ago, Carborendum said:

For those who speak legalese (ahem -JAG -

Do you trust the judgement of a guy who admitted, in public, that he likes Air Supply?

 

 Dude really said this. 

Edited July 7, 2021 by LDSGator

[Carborendum]

22 minutes ago, LDSGator said:

Do you trust the judgement of a guy who admitted, in public, that he likes Air Supply?

 

 Dude really said this. 

I'm all out of love for you, man.  

Edited July 7, 2021 by Carborendum

[LDSGator]

3 minutes ago, Carborendum said:

I'm all out of love for you, man.  

hahahahahahahahahahahaha

ya’all are awesome. 

[Fether]

2 hours ago, Vort said:

Very interested to hear an informed legal  opinion on this.

I’d be more interested to hear and informed illegal opinion on anything. That sounds like a very interesting opinion

… 

anyway… continue on

Edited July 7, 2021 by Fether

[Just_A_Guy]

So, the idea of couples being able to have a religious court arbitrate their divorce is not a new one—New York Jews have been referring their divorces to beit dins for decades.  If a Jewish couple can do that, I don’t see why a Muslim couple can’t.

The issue in this case is whether the wife knowingly agreed to arbitration in lieu of a standard court proceeding. Looking at the court’s actual order (page 306 of 800+ pages), it seems to me that the judge was saying “go do the arbitration; and if the imams are clearly shafting you then come back here and we can evaluate it in light of your constitutional rights and the child’s best interests”.  I think that’s procedurally wrong—I think the judge should have evaluated the arbitration agreement’s applicability as a threshold issue.  But judges are also notoriously eager to get issues off their desks if at all possible (more so now due to COVID-related backlogs) and many family courts require mediation before they’ll let you take the case to trial anyways.  So so I think this is less about a judge being willing to accommodate/enforce Islamist misogyny, and more about the judge just being a little lazy and saying “look, talking is easy; so go ahead and do your alternative dispute resolution thing now; and I’ll evaluate the whole process later if you don’t wind up with a settlement everyone can live with.” 

The other issue that occurs to me—and this is perhaps more of a moral issue than a legal one—but Mom seems to want to have an Islamic marriage when it works for her (“I signed whatever documents they put in front of me during the wedding because that’s what we do in our culture!”) and then reverts to a secular marriage when the Islamic rubric no longer works for her (“golly gee willikers, I had NO IDEA that this guy who wanted a marriage under religious law wouldn’t also want any dissolution of that marriage to be done under religious law!”). I don’t find that particularly impressive. I strongly suspect that she knew, at least in general terms, what she was getting into.  This strikes me as a cautionary tale:  If you don’t want to be treated like the wife of a fundamentalist Muslim—don’t marry a fundamentalist Muslim.

Under the circumstances I also suspect Mom’s attorney isn’t serving the client very well.  The appeal is costing her far more in delay and legal fees than half a day’s arbitration would have.

Edited July 8, 2021 by Just_A_Guy

[Vort]

13 minutes ago, Just_A_Guy said:

So, the idea of couples being able to have a religious court arbitrate their divorce is not a new one—New York Jews have been referring their divorces to beit dins for decades.  If a Jewish couple can do that, I don’t see why a Muslim couple can’t.

Sure. Your crazy aunt Sally can arbitrate, as long as everyone is okay with it. The question is whether the ruling of the so-called religious court has any legal weight. The judge's decision seems to imply that maybe it does. Maybe the judge wasn't inferring anything except that she signed the paper, so for a first swipe she should go to the religious court. But of course, if she later tried to object and say she didn't know she signed that paper, the response would be, "Then why did you go to the Sharia court?" So it seems lose-lose for her.

I appreciate a legal perspective on the matter. My sense is that the judge dropped the ball (at best) in making a ruling without considering the potential legal implications. Seems unlikely that a judge would fail to foresee such an obvious problem, though, which makes me question the decision even more closely.

[Just_A_Guy]

29 minutes ago, Vort said:

Sure. Your crazy aunt Sally can arbitrate, as long as everyone is okay with it. The question is whether the ruling of the so-called religious court has any legal weight. The judge's decision seems to imply that maybe it does. Maybe the judge wasn't inferring anything except that she signed the paper, so for a first swipe she should go to the religious court. But of course, if she later tried to object and say she didn't know she signed that paper, the response would be, "Then why did you go to the Sharia court?" So it seems lose-lose for her.

I appreciate a legal perspective on the matter. My sense is that the judge dropped the ball (at best) in making a ruling without considering the potential legal implications. Seems unlikely that a judge would fail to foresee such an obvious problem, though, which makes me question the decision even more closely.

Yes, if the court approves an arbitration agreement, then the arbitrator basically functions as a sort of mini-judge and the arbitration panel’s decision carries the force of law.

[Vort]

6 minutes ago, Just_A_Guy said:

Yes, if the court approves an arbitration agreement, then the arbitrator basically functions as a sort of mini-judge and the arbitration panel’s decision carries the force of law.

Surely she could appeal the judge's decision to require a Sharia court to a state supreme court or district court.

[Just_A_Guy]

2 hours ago, Vort said:

Surely she could appeal the judge's decision to require a Sharia court to a state supreme court or district court.

Sure; the document @Carborendum linked to is actually a petition on appeal.  But the grounds of appeal aren’t “church and state is being violated” or “Muslim courts are inherently anti-female”; it’s a routine contract law question of “did she know what she was signing when she signed it?”

[Carborendum]

19 minutes ago, Just_A_Guy said:

Sure; the document @Carborendum linked to is actually a petition on appeal.  But the grounds of appeal aren’t “church and state is being violated” or “Muslim courts are inherently anti-female”; it’s a routine contract law question of “did she know what she was signing when she signed it?”

Exactly correct.  But the details of the proceedings were what was disturbing.  Why did she not even listen to the wife's testimony?  Why, when the wife's lawyers tried to speak on her behalf, did she dig in even deeper and get mad at them for bringing it up?

BTW, the judge in question runs on a Republican Ticket.  Not that that means much nowadays in Texas.

Edited July 8, 2021 by Carborendum

[Just_A_Guy]

20 minutes ago, Carborendum said:

Exactly correct.  But the details of the proceedings were what was disturbing.  Why did she not even listen to the wife's testimony?  Why, when the wife's lawyers tried to speak on her behalf, did she dig in even deeper and get mad at them for bringing it up?

BTW, the judge in question runs on a Republican Ticket.  Not that that means much nowadays in Texas.

(I don’t know the answer, I’m just hypothesizing here):  If the hearing was on a regular law-and-motion calendar day (as most divorce pretrial hearings are), there was probably only about half an hour blocked out for the hearing.  That’s not enough time to swear witnesses and take testimony or review evidence.  For law-and-motion issues, the parties are supposed to have filed affidavits ahead of time; and if they hadn’t done that then a judge might get pretty testy at a lawyer basically blowing up the afternoon calendar and insisting that the next twelve hearings run late because the lawyer wants to convert a half-hour L&M into a two-hour evidentiary hearing.

Edited July 8, 2021 by Just_A_Guy

[Vort]

8 minutes ago, Just_A_Guy said:

(I don’t know the answer, I’m just hypothesizing here):  If the hearing was on a regular law-and-motion calendar day (as most divorce pretrial hearings are), there was probably only about half an hour blocked out for the hearing.  That’s not enough time to swear witnesses and take testimony or review evidence.  For law-and-motion issues, the parties are supposed to have filed affidavits ahead of time; and if they hadn’t done that then a judge might get pretty testy at a lawyer basically blowing up the afternoon calendar and insisting that the next twelve hearings run late because the lawyer wants to convert a half-hour L&M into a two-hour evidentiary hearing.

Which dovetails in with your idea that her lawyer is doing something less than a bang-up job.

[Carborendum]

53 minutes ago, Just_A_Guy said:

(I don’t know the answer, I’m just hypothesizing here):  If the hearing was on a regular law-and-motion calendar day (as most divorce pretrial hearings are), there was probably only about half an hour blocked out for the hearing.  That’s not enough time to swear witnesses and take testimony or review evidence.  For law-and-motion issues, the parties are supposed to have filed affidavits ahead of time; and if they hadn’t done that then a judge might get pretty testy at a lawyer basically blowing up the afternoon calendar and insisting that the next twelve hearings run late because the lawyer wants to convert a half-hour L&M into a two-hour evidentiary hearing.

This reminds me that a lot of the time is not just about the law itself, but about the procedures being followed.  This is true in engineering as much as it is in law.