Re: Judicial enforcement of Islamic dowry-on-divorce agreements
I think it is quite arguable that because the mahr *is* rooted in religious practice with which both parties were intimately familiar, the court should go beyond the short notice to see if the parties clearly understood that there would be one, what it consisted of, and what the sum was to be. In this case, the court recites that they had not agreed the sum, but did their negotiation before the imam. This is just the commercial bit, and there's no reason to think that you need a lawyer to haggle over the price. Just having the paperwork show up at the last second shouldn't bar enforcement or invoke Ohio public policy if it merely memorialized an agreement the parties had made--even implicitly--at an earlier time. There should have been evidence permitted on what the parties both understood would be the situation. I suspect that Ohio public policy on prenups is grounded on the proposition that the parties are too emotionally involved to reflect coolly on the terms. In an arranged marriage this presumption is manifestly unjustified. Vance On Thu, Jul 17, 2008 at 5:50 PM, Marc Stern [EMAIL PROTECTED] wrote: I jusr remembered that the case I refered to is avitzur v avitzur Marc - Original Message - From: [EMAIL PROTECTED] [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Sent: Thu Jul 17 17:37:15 2008 Subject: Re: Judicial enforcement of Islamic dowry-on-divorce agreements 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][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
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Judicial enforcement of Islamic dowry-on-divorce agreements
The New Jersey court surely has the better of this argument. The Supreme Court's decision in Jones v. Wolf rests on the view that of course the courts can enforce contracts that implement underlying religious practices, so long as the contracts are written in secular language. . Quoting Volokh, Eugene [EMAIL PROTECTED]: 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[1]- 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[2] . 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[3] Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[4] Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 Links: -- [1] http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio [2] http://volokh.com/files/zawahiri.pdf [3] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [4] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages
Re: Judicial enforcement of Islamic dowry-on-divorce agreements
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Judicial enforcement of Islamic dowry-on-divorce agreements
I jusr remembered that the case I refered to is avitzur v avitzur Marc - Original Message - From: [EMAIL PROTECTED] [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Sent: Thu Jul 17 17:37:15 2008 Subject: Re: Judicial enforcement of Islamic dowry-on-divorce agreements 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot
