I am travelling and don,t have the citation but the new york court of appeals
held the ketubah is enforceable. The ketubah is the jewish eqiuvalent of the
islamic mahr(indeed the word mahr has a hebrew equivalent mohar_a word used in
the bible in exodus 21
Marc stern
----- Original Message -----
From: [EMAIL PROTECTED] <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Thu Jul 17 17:20:05 2008
Subject: RE: Judicial enforcement of Islamic dowry-on-divorce agreements
I should note, by the way, that a similar First Amendment
argument has been raised against the enforceability of mahrs in some
other cases. I've only seen it squarely confronted in one other case,
Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ch. 2002), which held
that a mahr may be enforced so long as it "can be enforced based upon
'neutral principles of law' and not on religious policy or theories,"
for instance if it simply and expressly calls for a money payment.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Volokh, Eugene
> Sent: Thursday, July 17, 2008 2:13 PM
> To: Law & Religion issues for Law Academics
> Subject: Judicial enforcement of Islamic dowry-on-divorce agreements
>
> Mohammed Zawahiri and Raghad Z. Alwattar were married, in an
> arranged marriage. The day of the wedding, Zawahiri signed a
> "mahr" under which he promised to pay his wife $25,000 in the
> event of divorce. A few days ago, the Ohio Court of Appeals
> (http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-
> 3473.pdf)
> held that the agreement was unenforceable under generally
> applicable Ohio prenuptial agreement law (chiefly because it
> was "presented a very short time before the wedding ceremony
> and postponement of the ceremony would cause significant
> hardship, embarrassment, or emotional stress,"
> and because "Zawahiri did not have the opportunity to consult
> with an attorney prior to signing the marriage contract");
> this may well be right.
>
> What particularly interests me, though, is the trial court's
> alternative basis for its decision, on which the appellate
> court didn't opine: The First Amendment barred enforcement
> of a mahr -- just as it would bar the enforcement of an
> agreement to give a Jewish religious divorce (citing an
> unpublished Ohio decision, Steinberg v. Steinberg, 1982 WL
> 2446 (Ohio. App.)). Though the mahr requirement "seems less
> like a religious act than the participation in a religious
> divorce ceremony," "because the obligation to pay $25,000 is
> rooted in a religious practice, it is similarly a religious
> act" and a court therefore can't order the husband to make
> the payment. I've put the trial court decision online at
> http://volokh.com/files/zawahiri.pdf .
>
> Could that be right? Is it even constitutionally permissible
> to categorically refuse to enforce all contracts -- including
> those that call for what would otherwise be seen as secular
> behavior -- because they are "rooted in a religious
> practice"? Or would such a denial of civil court access to
> people who seek enforcement of contracts, simply because the
> contracts are "rooted in a religious practice" (and don't
> require any determination of religious truth or religious
> law, coercion of inherently religious conduct, or supervision
> of religious institutions or rituals), itself violate the
> Free Exercise Clause?
>
> Eugene
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