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| Challenges and Opportunities
Facing American Muslim Women A Non-Governmental Organization (NGO) Workshop by Muslim Women’s League And Karamah: Muslim Women Lawyers for Human Rights Dr. Laila Al-Marayati, Asifa Quraishi, Samer Hathout, and Dr. Azizah Al-Hibri NGO Forum, United Nations Fourth World Conference on Women Huairou, China September 7, 1995 Challenges Facing American Muslim Women
I am going to discuss the challenges facing
American Muslim women. As a minority in the United States, Muslims face
many challenges. First and foremost is ignorance about Islam. This
ignorance leads to stereotyping, fear, and distrust. The acts of a few
Muslim extremists are attributed to all Muslims. Muslim American
citizens’ loyalty to the United States is questioned. We are dehumanized
and thus easy prey for prejudice. For instance, last April, the federal
building in Oklahoma City was bombed. It is probably the most devastating
terrorist act to occur on U.S. soil. A few hundred people were killed,
several hundred were injured. It was particularly brutal because there was
a day care center on one of the bottom floors of this building. As soon as
the report of the bombing came out, the first suspects were Muslims. As
soon as the building was bombed, news reports said: "Arab looking
people were seen leaving the area." Basically, for the next
twenty-four hours, we faced harassment, we were threatened, and our lives
were very much put in danger. Muslim schools had to be closed, and
individual Muslims were detained and harassed, even physically assaulted.
It wasn’t until the next day, when it turned out to be a fringe minority
white group of people who had done it, could we sort of breathe a sigh of
relief that our lives were not in danger, and finally we were able to
mourn the victims of that bombing. Another danger resulting from American
ignorance about Islam is the omnibus anti-terrorism legislation that
President Clinton has proposed, which unfairly targets Muslims as
widespread purveyors of terrorism. Despite several generations in this
country--as Asifa mentioned, Muslims have quite a history in the U.S.--we
are still perceived as foreigners; we are still perceived as people out to
destroy the United States, and when we attempt to define ourselves, our
voices are silenced. When mainstream Muslims are given the rare
opportunity to explain Islam, we are told that we, as moderate Muslims,
are the minority, and that most Muslims are actually violent extremists.
This image of Muslims as violent extremists is perpetuated by the media
which chooses to report primarily negative images of Islam and Muslims.
This image is further intensified by the profound ignorance of the average
American about Muslims and Islam. This ignorance, unfortunately starts at
a very early age--in schools, the textbooks are biased, and have a lot of
erroneous information. And, as all minorities must do, American Muslims
must struggle to ensure that our civil liberties are not trampled upon.
Our accomplishments in being counted as part of the American pluralism,
while maintaining our identity as Muslims, are often rebuffed and
misunderstood. We are told, by some Muslims and non-Muslims, that we must
choose between being Muslims and being Americans. Among Muslims--who range
from every culture on earth, as we’ve seen in this conference--American
culture is unfairly perceived as inherently anti-Islamic, and little
attempt is made to understand and accept Muslims of the American culture
alongside Muslims of Arab, Asian, African, or any other ethnicity. Among
non-Muslims, because the U.S. was founded on the basis of the separation
of church and state, the presence of any religious group in the political
arena is viewed with suspicion. As Muslims, we carry that burden, but we
also carry the additional burden of ignorance about Islam. Our continuing
striving to define ourselves as American Muslims is in fact a very
challenging jihad. Muslim Women in America As women in the United States, we often
face gender-based discrimination. While this discrimination may not be as
overt as in other parts of the world, or may take different forms, it does
exist in America nevertheless. Women often cannot achieve their highest
potential in career or education and the media continually depicts women
as sex objects and nothing more. American women’s salaries are still,
dollar-for-dollar, less than the corresponding salaries for their male
counterparts. Women who do work to earn a living still have primary
responsibility for taking care of the home and family with little domestic
support from their husbands. Women in positions of influence in the United
States are few and far between. Recently we have had setbacks in
affirmative action, and that will only make our struggles for equality
more important. American Muslim women face many unique
additional hurdles. We are discriminated against by both non-Muslims and
Muslims in America. For instance, a woman who wears hijab, which is the
traditional head-covering, is often taunted at work and on the street, and
the careers of a lot of these women are actually jeopardized--they are
discriminated against at work and they are not given jobs. And, women who
wear hijab in the United States are obvious targets--they are obviously
Muslims, and because of this they bear the brunt of the ignorance about
Islam; they face sexual harassment, and often their actual physical safety
is jeopardized. As Asifa mentioned, Muslims come from
different backgrounds. In America, we have immigrant Muslims, who face a
whole host of problems such as xenophobia. In the U.S. in recent times,
there has been a growing hostility toward immigrants, and they are often
erroneously blamed for all of the socio-economic problems that we face in
the U.S., and are harassed because of that. And we have a large
African-American Muslim population, and they face additional hurdles,
because being part of a racial minority in the United States, they have
had to deal with the problems of racism, discrimination, segregation and
the vestiges of slavery. To that, add religious discrimination and gender
discrimination, and these are some of the challenges that are generally
faced. But in addition, Muslim
women often face discrimination from their own Muslim community.
Discrimination by Muslims primarily results from ignorance about Islam and
the importation of cultural attitudes that demean women. Islam is often
interpreted in ways that are sexist and not true to the true teachings of
equality in the Quran and the model provided by Prophet Muhammad, may
God’s peace and blessings be upon him. Quran and hadith (the teachings
of Prophet Muhammad) are taken out of context and used to justify certain
behavior. Because Muslims are
a minority in the United States attempting to portray a positive image of
Islam, the true image of the teachings of Islam, Muslims in America are
often reluctant to address the problems faced by Muslim women for fear
that the enemies of Islam will use this information against us. But the
ironic part is, that everyone
knows the problems we face, and everyone knows that we are the only people
not addressing them. And unfortunately the media is quick to inform us and
others of the more serious forms of abuse or discrimination that Muslim
women encounter. And what we hope to achieve in this presentation
is to recognize some of the problems that we as American Muslim women
face, and give voice to our sisters who have suffered wrongly in the name
of Islam. Asifa later will explore opportunities that we as Americans have
to attempt to address these issues. Case Studies Some of the most serious problems that we
American Muslim women face include: domestic
violence, abuse of divorce and child custody laws, abuse of the polygamy
system, and isolation and exclusion from various aspects of Muslim
life. We are going to provide a few anecdotal cases simply to illustrate
the depth of the problems. We have given the women in the stories names to
make it more personable, but their identities have been changed and their
confidentiality is protected. The stories are shared simply to illustrate
and give life to the specific suffering of American Muslim women today.
These are true stories, these are real women who have suffered. These
stories were compiled by speaking with Muslim community leaders, social
workers, psychologists, lawyers, doctors, mostly in southern California,
but throughout the United States. We also obtained information from a
thing called Sistersnet, which is an E-mail network of Muslim women
throughout the United States and other countries. But unfortunately, there
is no database, there is no accurate information that exists as to the
frequency of any of these abuses that occur. Further research of these
issues is desperately needed so that we can adequately address these
problems. And, while these cases may not be experienced by a majority of
American Muslim women, they are nevertheless serious issues that must be
addressed. Now, the story of Mariam is as follows. Mariam Mariam got married to a man named Ali. They
were married for several years. Throughout this marriage, Ali abused
Mariam. His abuse was verbal and physical. Mariam was often beaten by her
husband. When Mariam did attempt to speak with her
local Muslim community leader, she was made to feel that the abuse was her
fault: if she was a better wife, Ali would not have to beat her. She was
also told not to discuss her marital problems with other people, and that
it was important for her to stay married at all costs to preserve the
family. And, Ali would quote the Quran and hadith to justify his abuse.
And so Mariam being told by her local Muslim leader that the abuse was
justified, she had Quran and hadith quoted in her face to justify it, she
thought it was justified. She was abused for years. And finally,
she couldn’t stand it any more. She feared for her life, she left. She
left her home, she left her husband, and sought refuge in a local
(non-Muslim) battered women’s shelter, and there she received the
assistance that she needed to put her life back together. Ali was
convicted in U.S. court for spousal battery. When
Mariam, appeared at Muslim functions, she was shunned; the Muslim
community wanted nothing to do with her. She was viewed as a woman who had
left her husband for no reason. Ali, on the other hand, when he went to
Muslim functions, was viewed as the victim of a broken marriage, as a
victim of the U.S. criminal justice system. He was greeted by the Muslim
community with open arms. Mariam found no support from the Muslim
community. She continued to go to non-Muslim agencies for support, and she
finally stopped attending Muslim functions. Mariam’s story, unfortunately, is not an
uncommon one in the United States. Victims of
domestic violence have little support from the Muslim community,
and the support they do receive, while well-intentioned, is often
unorganized and ineffectual. The lives of domestic violence victims are
often in danger, and their only recourse is to turn to non-Muslim
organizations who are prepared to deal with this issue--which is also a
pressing issue in the larger American society as well. So we face issues
of domestic violence. The story of Khadija and Fatima shows the abuse of
the polygamy system in Islam. Khadija and Fatima Khadija married Omar under the laws of the
United States and the state in which he lived, and under Islamic law. Omar
later took a second wife, Fatima. But, Omar and Fatima could not get
married under U.S. law because he was already married to Khadija, and
polygamy is illegal in the United States. So, Omar married Fatima under
a--supposed--Islamic tradition which includes simply a marriage proposal
and an acceptance of that proposal in front of witnesses. Fatima, the
second wife, who was a convert to Islam, learned Islam mostly from Omar
and he convinced her that they did not need to be married under U.S.
law--Islam would sufficiently protect her rights. And while this is true
in the theoretical sense, in the United States, we have no framework to
enforce that. Omar had children through both of his
wives--his first wife Khadija and his second wife Fatima. Both marriages
failed. Khadija and Omar--the first marriage--divorced. Omar refused to
pay any support to Khadija or their children through that marriage. But
Khadija could take Omar to U.S. court and get child support and alimony.
Now, Omar was obligated under Islamic law to do these things, but he
refused, and as a religious minority in the U.S., not living in an Islamic
state, Khadija had no recourse other than the laws of the U.S. But,
thankfully, Khadija was married to Omar under U.S. law and could take him
to court. Fatima, on the other hand--when Fatima and
Omar divorced--couldn’t do that, because she was not legally married in
the eyes of the U.S. courts. So, Omar shirked his responsibilities under
Islamic law--didn’t give her anything, didn’t give their children
anything, even though he had assured her, before the marriage, that he
would. And Fatima couldn’t do anything under U.S. laws because they
weren’t legally married. Fatima was able to get no financial support
from Omar because there was no legal institution compelling Omar to comply
with Islamic law. And next is the story of Iman. While the
situation is not as physically or financially serious, it still is
extremely emotionally harmful, and it’s very common. Iman Iman is a university student. She is very
active in her student government on campus. She has formed coalitions with
other student groups and they do relief work for Bosnia, Palestine,
Chechnya, and other causes. She is on the student senate at her
university, after being elected to it. She wants to organize similar
relief efforts in her mosque, in her local Muslim community and in other
mosques in the area so that she can reach the larger Muslim population.
She wants to post flyers and information on the walls in her mosque. But
she can’t get to the men’s section. She can only distribute the
information to women, many of whom don’t come to this mosque, because
the facilities are less than adequate or desirable. Iman does not have a
brother, father, or husband to access the men’s side for her when she
needs to get information to the Muslims. On occasion, she has approached
men to ask them to help her. Many of them ignore her and leave, but on
occasion, she has had men help her to post flyers and such information on
the walls. But, it’s difficult, because the next time she goes, she
can’t find the same man, and she has to go through the same thing again
and again, and she gets really frustrated. She can’t make any announcements at the
mosque about the work that she’s doing. She wants to make an
announcement after the Friday prayer, but she is told she can’t because
she is a woman. She is getting fed up and she wants to make a change.
Elections at this mosque come up, and she wants to run for the board
because it’s a great way to get involved and to make changes. But she is
told she cannot run for the board because she is a woman. But she is told
she can join the women’s committee and organize Eid carnivals for the
children and prepare iftar (break-fast) during Ramadan. Iman, of course,
is extremely frustrated. She is an activist. She has work that she is
doing. So she stops going to the mosque because she knows that she can do
more through the non-Muslim human rights groups at her university. As shown by Iman’s story, Muslim American
women are regularly excluded from leadership positions in our mosques and
in our Islamic centers. We are allowed to participate only in certain
areas -- preparing lunches, organizing Eid festivities, and events of that
sort. Women are absent from educational or spiritual roles, unless they
are teaching other women or children. Women with Islamic knowledge and
expertise are not allowed to explain the Quran to the congregation nor
give lessons in Shariah. Gender segregation is
imposed in most American mosques and results in unfair and unequal access
to space and facilities. Women are often put in areas with poor sound
systems, or none at all, or noisy makeshift childcare areas. They are
stuck in back rooms next to the bathrooms, and wherever they are put--even
if it’s a great facility--they still can’t interact with the speaker
and ask questions and have their voices heard. American Muslim women are
not just excluded from leadership positions in our communities, but also
even excluded from mosques completely. This exclusion can be overt where
we are told "you cannot go to the mosque, this is a men’s
mosque," or it can be subtle, where the facilities provided are so
inadequate and the treatment we receive is so horrendous that no
reasonable woman is going to go back. All of this exclusion has no basis
in the teachings of Islam. It results from culture and tradition. And Muslim women also deal with other
problems, many of which are culturally or ethnically based and not unique
to Islam. There has been so much cultural baggage that has come to the
U.S. with the various waves of Muslims. And some of these other problems
are not unique to Muslims, such as: the general
devaluation of women--we are just seen as "not as good" as men,
a preference for sons over daughters, women as a source of honor--and
therefore shame--in the family, so we carry this horrendous burden of
family honor, early marriage which often results in early pregnancy and
usually an end to a woman’s educational opportunities, double standards
which often result in unequal access to education--higher education
especially, because women are not allowed to leave their homes or to
travel very far to go to universities. These abuses that I have mentioned are
simply a few of those suffered by Muslim women in America. The abuses vary
in degree and form. Again, we raise these issues not because we hate
Islam, not because we hate Muslims, but because we--as
Muslims--need to deal with the problems. It is not enough to say that
Islam is a great religion. We need to prove it with our actions. It is increasingly
common to see Muslims in the United States--women and men--leave Islam in
growing numbers because of the treatment of women. They see Muslims as
offering no solutions to these problems and they see Muslims denying that
these problems exist, and after awhile it simply becomes unbearable. As
Muslims it our duty to fight against every form of oppression, whatever
form it takes, by whatever means we can, and we cannot fight oppression if
we do not acknowledge that it exists. At this point, I am going to give it back
to Asifa, and she is going to talk about some of the opportunities that we
feel as Americans we have, to address some of these issues. Opportunities Facing American Muslim
Women: We feel that we, as Muslim Americans, have
opportunities to openly address the challenges facing American Muslim
women. As Americans we have access to a legal system that was formulated
to protect the rights of those who suffer abuse. The laws of the United
States guarantee us certain freedoms, such as the freedoms of religion and
speech. We have legal avenues to fight discrimination and abuse. We also
have the ability to engage in open and honest dialogues without fear of
retribution from the government. Moreover, the women’s movement in the
United States has made great strides in bringing to light the abuses
suffered by women and offering avenues of redress. Many of the issues of
the American women’s movement, in fact, are strongly shared by Muslims:
domestic violence, child custody, pornography, equal access to education
and employment, adequate maternity and paternity leave policies, and
respect for the family-focused work of women. We can learn from the
systems that are currently in place, we can work within these systems, and
we can adapt these systems to meet our needs as Muslims. For instance, our
Muslim leaders need to be trained in crisis management and counseling
skills to effectively deal with victims of abuse who seek their
assistance. We can learn the counseling skills from successful counseling
centers in the United States, and then modify those skills to comport with
our Islamic teachings. Another critical
step is to hold our Muslim leadership accountable.
Muslim leaders cannot simply rebuff women who come to them seeking
assistance. The job of Muslim leaders, both in the United States and
abroad, is to serve the entire Muslim community and to uphold the
teachings of Islam. The leadership cannot be more
concerned with upholding an idealized image of Muslims than it is with the
welfare of individual Muslims. And the Muslim community must
overcome the taboo preventing women from holding any significant
leadership positions. With the presence of upright, educated Muslim women
in leadership roles, Muslim leaders as a whole will become more directly
familiar with the perspectives and insights of those most familiar with
the problems, thereby leading to a mutually productive, fair solution to
this type of oppression--of women specifically. We
also must hold ourselves as women accountable. We must educate ourselves
about the original teachings of Islam. We must then demand that our rights
under Islam be honored, and we must support our sisters in their various
struggles. Whether that struggle is to become an elected board member or
to leave an abusive husband, we must demand our rights and be willing to
go out and get them. As Americans, we have a unique opportunity
to practice Islam in its true form -- without much of the cultural or
traditional baggage that is oppressive to women. Moreover, whatever
cultural bias does carry over with immigrants, their children are often
able to overcome these shackles and simply deal with each other as
American Muslims. The prevalence in America of intercultural marriage
among Muslims in second and third generation children of immigrants
attests to this fact. Also, while the American system still
leaves much to be desired in terms of its treatment of women, it has made
a significant start, and we can use the best of what the United States has
to offer to aid us in our struggle to end the suffering of women and thus
to implement the Quranic order to stand up against oppression in whatever
form, and through whatever means we have available. Because we have these opportunities, we
must use them to clearly state our position and to fight to end the
oppression suffered by women. On the issue of violence, some steps are
being taken. Some leaders are addressing and condemning domestic violence
in their khutbas (speeches during prayer). The issue has been discussed in
magazines, such as The Minaret and Islamic Horizons. And the issue was
discussed by a wide range of women and men on the Sistersnet, which was
mentioned earlier. Some communities are trying to organize battered
women’s shelters. These efforts are limited, but at least interest has
been shown. Increasingly, Muslims are entering the fields of psychology
and social work which then enables the Muslim community to use its own
resources. Domestic violence cannot be tolerated. Islam’s focus on
harmonious relationships in marriage, and even in divorce, shows that
there is no place for violence in Islam. The example of the Prophet
Muhammad (peace be upon him), who never hit his wives, and strongly
discouraged the practice, should be followed. As for the exclusion or segregation of
women, there is no precedent for this during Prophet Muhammad’s life.
Women used to fight in battles alongside men. Women and men attended
classes together taught by the Prophet where women asked the Prophet
questions and had the opportunity to interact with him and educate
themselves. Women did not even pray behind a curtain or physical barrier
of any sort--a practice that is unfortunately popular in many American
mosques today, and around the world. In regards to polygamy, it cannot be
Islamically practiced in the United States because the prerequisite for
polygamy in Islam is that each wife must be treated equally. In the United
States, each wife cannot be treated equally because one wife is legally
married under U.S. law and the others are not. For example, only one wife
is entitled to benefit from a life insurance policy, and any other wives
later are not provided for. The Quran states: And if you have reason to
fear that you might no act equitably towards orphans, then marry from
among [other] women such as are lawful to you--two, three or four: but if
you have reason to fear that you might not be able to treat them with
fairness, then [marry only] one. (4:3). Regarding all these issues, American Muslim
women are just now beginning to take an active role in educating
themselves and questioning practices that violate their rights as Muslims,
even though they may be done in the name of Islam. One arena where this is
taking place is the Internet--again, mentioned earlier--where women,
interestingly, can have discussions and ask questions openly, without
being silenced, interrupted, or harassed in ways that would prevent them
from doing so when they speak out in person, which unfortunately too often
happens. In our jihad to end oppression, we must be
mindful of the Islamic teachings of mutual cooperation and respect. The
Quran states: And [as for] the believers, both men and women, they are
protectors of one another: they [all] enjoin the doing of what is right
and forbid the doing of what is wrong, and are constant in prayer, and
render the purifying dues, and pay heed unto God and the Apostle. It is
they upon whom God will bestow grace: verily, God is almighty, wise.
(9:71). Issues Regarding Family Law Affecting
American Muslims: Salamu Alaikum. Bismillah Arrahman Arraheem. One thing Karamah noticed, and I think one
reason we established Karamah--as well as the Muslim American Bar
Association--in the United States is because we realized that there
is a real need among the American Muslims to develop what we call legal
literacy. There is really not much knowledge among the Muslim
population in the United States about the law in the United States. And as
a result of that, very often unfair situations could have been avoided had
the person known about American law. So I would like to sensitize you to
some of the issues relating to family law and tell you what courts have
said about them. Essentially these apply in some cases to males and
females, not just only to females. My sisters talked about the issue of
marriage to more than one woman and the effect of that legally. I also
have cases that I brought with me which happen to involve what is called mut’a
marriage. In one case that I will discuss, you might think about it as
applying to a situation where a Muslim woman got into a regular marriage,
not a mut’a marriage, without a civil marriage license. Why would a
Muslim woman have a Muslim wedding ceremony without a civil license? Many
reasons. One of them is illustrated in this case. A Muslim couple were
married under both religious and civil law, and when they wanted to
divorce, they divorced under Islamic law, but the wife found it too costly
to pursue a divorce in civil courts. From her point of view, she was
divorced, religiously. From the state’s point of view, she was still
married. But she went ahead and married someone else Islamically. She
could not register it with the state because the state saw her as already
married. When the second husband misbehaved, she could not go and enforce
her rights in court because she was not legally married in the United
States. She could have avoided all that by simply finding a way through
legal aid, or some other way in the community, to finalize her civil
divorce. There is no reason why she should disadvantage herself. Marriage Let me tell you about the case of the
mut’a marriage I found. The reason I would like to discuss this case
with you is because the court’s reasoning can be detrimental to the
woman in regular marriages. When the court does not find a civil marriage
document, the first step is to say, all right, there is no legal marriage,
but is there a putative marriage--a common law marriage? Then it goes
through the reasoning. In this case, this happened in California in 1988.
It is called In re the Marriage of Fereshteh R. and Speros Vryonis, Jr. In
this case, the couple decided to marry, but because of their professional
relationship (they were both professors in the same department) they found
it a little bit uncomfortable to announce the marriage. So they went into
mut’a marriage--which lasts for a period of time. But also they did not
want to announce the marriage to the faculty, and wanted to keep their
public relationship as before. The court actually looked at this and said,
obviously there is no civil law marriage. They don’t have that. Do they
have a putative marriage? The court says, well, if they had gone through
the formalities, or if the failure to do so was for some good reason, the
court would understand. But is it possible for the wife to have a good
faith belief that this is a marriage? If the wife could have a good faith
belief, then the court would see it as a putative marriage. Well, a good
faith belief must be reasonable. The court asks how could this belief be
reasonable, then lists a variety of elements. One of the elements is
whether the spouses had separate bank accounts. Now you know in a regular
marriage, Muslim women are granted financial independence. In fact I know
of cases that I will share with you where the Muslim woman after marriage
refused to join her bank account with that of her husband based on her
Islamic rights. The court in a Florida case saw that as bad faith on her
part--that she is not serious about the marriage. I have seen the papers.
The fact that a Muslim woman may refuse to take on her husband’s name,
which we know a lot of Saudis and other Muslim women do, that is viewed
sometimes by the court as an indication that the marriage is not for real.
In this case, for example, they looked at the finances. They said: "Fereshteh
did not use [this guy’s] surname and nor did they commingle their
finances." This approach could apply to any regular marriage. The
court also looked at other things. There was no written document. Well,
you know, we’re talking about a situation with no written documents. As
a result, the court said that Fereshteh, the woman, could have had no
reasonable belief that this is a marriage, and therefore there isn’t
even a putative marriage. I am addressing this because I could see
Muslim women for a variety of reasons entering an Islamic marriage
contract, without the civil counterpart, keeping their finances apart,
keeping their names apart, and the court would look at that, and with
other indicia say there is no good faith belief here that there is a
marriage. And, by the way if the court says that and you have children,
you are stuck, because your children under American law become
illegitimate. And that is something very important for Muslim
jurists--they did everything to make sure that children have their rights.
For example, under Islamic marriage you know you have to have a mahr or a
dowry; but even if the husband does not deliver the mahr, that does not
make the marriage void. A lot of people are unclear about that. The reason
the jurists did this is because they wanted to make sure that the children
under the marriage are legitimate. There are other remedies therefore for
the woman to get her mahr if the husband does not give it to her. Divorce The next thing I would like to move on to
is the area of divorce. The area of divorce is very interesting under
American law, because essentially judges do not understand what the whole
Islamic framework of family law is about. They hear about it from
distorted media, and that comes back and affects the rulings. And
therefore groups like Karamah and other organizations are going to be
active in trying to explain to these judges what is the significance of
certain Muslim laws. Also depending on the state that you are in, the
court decision is going to be either negative or positive. For example,
New York tends to have a better understanding of Islamic law and things
like the kitab than other states. So you better be sure which state
you’re in and what kind of laws that state has adopted on certain
issues. For example, in the case of Aziz v. Aziz,
which is a New York case in 1985, the court looked at the Islamic marriage
contract as a pre-nuptial agreement. That’s fine. And then it says, can
we enforce a pre-nuptial agreement in this court? The problem was that the
pre-nuptial agreement here was a religious agreement, and yet the courts
in the United States are secular--they’re not supposed to enforce
religious agreements. So the way they handled it in New York, because
they’re very familiar with the kutuba, under the Jewish law, was to say
that they would enforce the secular aspects of the agreement, rather than
throw out the whole agreement. So, things like mahr will be enforced in
New York. Well, let’s see what happened in another
jurisdiction, in a case called Dajani v. Dajani. This is an Orange County
case, 1988. In Dajani v. Dajani--this is a case of a Jordanian couple--the
wife asked for divorce. We have no idea from the record why she asked for
divorce. The court looked at her demand and listened to some experts, and
decided that she is not entitled to her deferred dowry, mahr muta’akhir.
You need to know this because, by the way, even if you’re not living in
the U.S., if you go to the U.S. for a few months, there might be a
jurisdictional basis for bringing a case in the United States to resolve
issues of this sort. Why did the court in Orange country decide that the
woman is not entitled to her mahr? Well, because they brought experts on
Jordanian law and Muslim law, and we don’t know where these experts came
from because, as you know, different people bring different experts. And
this is what they said, I’m reading from the case itself. The court says
that, based upon the testimony: the law in existence would be that of the
Jordanian or Moslem law, and it finds that if the wife initiates a
termination of the relationship [if she asks for divorce], she forgoes the
dowry and the court so finds that in this case the wife initiated the
termination of the marriage, and common sense and wisdom of Mohamed [sic]
would dictate that she forgo the dowry, unless the parties agree
otherwise. . . . This statement, by the way,
jurisprudentially, is wrong. First of all, under
Islamic law, it’s true that if there is no reason to ask for divorce,
the wife forgoes the dowry but, for example, if her husband is harming
her, there is the principle of darar (harm) which is in the jurisprudence
of Muslims, and she can go and seek a judicial decree of divorce because
of harm. That does not release the man from the payment of deferred dowry,
or else you would be rewarding him for the darar or the harm he caused the
woman. Plus, the parties cannot agree otherwise as to the basic
laws of Islam. You cannot supersede Islamic law by agreement. So the court
is quite confused here. The court continues: Public policy considerations are
appropriate here. Look why--now you’ll see the
understanding of the court of what an Islamic kitab is. It says: Pre-nuptial agreements [and it considers a
kitab to be a pre-nuptial agreement] which "facilitate divorce or
separation by providing for a settlement only in the event of such an
occurrence are void as against public policy." In other words, if you have an agreement
that encourages you to divorce, that’s against public policy. The court
says that a kitab, an Islamic marriage contract, encourages the woman to
divorce. Why? Because that kitab says that if she divorces, she will get
money. So, in other words, to get money, she will be motivated to divorce.
I would argue that by their logic, a kitab also encourages a woman to
commit murder, because she will also get money upon the death of her
husband (if she is not discovered). This is ridiculous. But that is
exactly what the court says. I’m reading from the court opinion: Jordanian marriage contract must be
considered as one designed to facilitate divorce. . . wife was not
entitled to receive any of the agreed-upon sum unless the marriage was
dissolved or husband died. This is profiteering by divorce, the court
says, and therefore we will not allow it. And the wife lost her dowry. And
we don’t even have an idea, maybe she was entitled to it under Islamic
law, but the court did not reach that level of sophistication in its
analysis. Muslims ought to start engaging in legal education of the court
system in the United States, about Islamic law and the personal status
codes of Muslim countries, because we’re getting very weird results. Let me tell you about another case, a
Florida case, that I was dealing with before I came. Unfortunately, I was
not able to help there as much as I needed--I wanted to. This case is the
case of a Muslim woman who is a traditional, conservative woman who went
to school, became a dentist, never dated, never went out of her house in
the wrong way--she was really traditional. She met another Muslim who
liked her. He came to her father and asked to marry her. The father said
yes. They made an oral agreement, because when Muslim families usually
make these agreements about dowry, even the father is sort of embarrassed
to ask for money because he’s not selling his daughter, but he asks for
some sort of security for his daughter in case of divorce or death. So,
usually they ask the daughter how much she wants, and it’s a very
symbolic amount up front--it doesn’t have to be, but usually they ask
for some symbolic amount up front. But if something goes wrong at the back
end, this woman needs some support, and that’s what deferred mahr is
about. And, by the way, if anybody knows anything about American family
law, that’s very much like lump sum alimony. What’s the big deal?
Under American law, it’s lump sum alimony. But because of orientalist
interpretation of dowry, we start thinking of it as the bride price, which
is ridiculous--because it isn’t. It is the fact that Islam was concerned
about the Muslim woman from fourteen, fifteen hundred years ago. This Muslim woman married this guy, and the
father said: we don’t want anything from you up front, and if there is a
divorce or death, the deferred would be--and he had asked his daughter and
she said--$50,000, which is not unusual for their class status. He said
fine, and they wrote this on an Islamic Center contract--where it says
"mahr," they put $50,000, and he signed and everybody signed.
One year later. This is a miserable story I’m going to tell you. One
year later, this poor, conservative, religious woman discovers that her
husband has given her an incurable venereal disease, a disease that will
forever prevent her from having children, and if she were to have
children, they would die of choking very early on in life. He destroyed
her. She was in such a depression that I couldn’t talk to her on the
phone without her sobbing the whole time. And I kept saying, "have
faith in God, there is a reason for this, you’ll overcome this."
She said, "If he divorces me, what respectable Muslim man is going to
marry me? I’m finished, I’ll never have children," etc. He wiped
her life out. Now, she caught him also arranging for a
mover to move him out of state--he was going to leave her without telling
her, and without paying her the deferred mahr. She went to court, asking
for divorce and for mahr. Under Islamic law--I called various jurists and
I checked it in the texts--he has harmed her. She is entitled now to her
deferred mahr. She’s not leaving him because she wants to and there is
no reason; he has harmed her, and he is not entitled to run away without
paying the dowry. What happened? The court--and it was a woman
judge--interviewed the husband, the father, an imam from the masjid, a lot
of people, and asked "what is a mahr?" And they explained that a
mahr is usually what you get upon divorce or death, but the woman usually
doesn’t get it if she is asking for divorce. Well, the court did not
focus on the word "usually." They decided that since she was
asking for divorce, she shouldn’t get anything. Worse yet, the husband
came to the stand and said "I don’t know what she’s talking
about. What is this mahr law she’s talking about? She’s leaving me,
why should she take any money?" They said, "don’t you know the
laws of mahr?" "Oh, no." "How come?" "I grew
up in Lebanon." "Where?" "In Tripoli." By the
way, Tripoli is predominantly Muslim. He said, "No, I went to a
secular school. I don’t know, I signed something, I have no idea what it
means. So my idea about mahr is not the same as hers; there is no meeting
of the minds, and therefore I will not pay." The judge bought that
argument. The woman till this day does not have a nickel. And she has her
venereal disease, she’s sitting at home with her parents, and nothing to
look forward to--because the judge could not understand the Islamic
jurisprudence of dowry, of mahr. This is very serious. I’m telling you
because we need to educate those judges. Mahr--it’s like a diamond ring. It’s a
gift to show the intentions of the man towards the woman. Even ancient
jurists explained it this way--this is not a new feminist way of looking
at it. That’s how Islam always regarded it. Islam never looked at the
wife as something that you can buy or sell. Custody Let me now give you one other problem that
I think is very important for Muslims in the United States to be aware
of--and this applies to men too, because men think they’re smart and
they can take care of things. Listen to this situation. Islamic
jurisprudence historically has allowed, for a variety of reasons, the
Muslim man to marry a non-Muslim woman. The Muslim man knows that he is
responsible for his children, and the religious upbringing of the
children. So many Muslim men in the United States, when they come to
marry, have an oral agreement with the non-Muslim wife: "will you
bring my children up as Muslims?" and she says, "of
course." Here is the most advanced decision by a court in the United States about such agreements--the most advanced, there are some which are not as advanced. It says: we note that defendant has failed to
produce any written agreement between the parties regarding the religion
in which their children were to be instructed. Agreements between
divorcing spouses with respect to the religious upbringing of their
children will be upheld by the courts only when incorporated into
separation agreements, court orders, or signed stipulations. . . . In the
absence of a written agreement, the custodial parent . . . may determine
the religious training of the child. Jabri v. Jabri (New York, 1993). So,
anything you might do orally, or even in writing ahead of time, which is
not a separation agreement or a court order, etc. about the religious
upbringing of the children, is not going to count in court. So, what
happens is whoever gets custody of the children, will be in charge of the
religious upbringing of the children. Who is that in the United States? It
is usually the mother. And since Muslim men are allowed to marry
non-Muslim women, guess who is bringing up the child? A custodial,
non-Muslim mother. And she has the full legal right under American law to
educate them in her religion, and the father cannot say a thing. That is
something to think about. And, finally, there are two interesting
cases: Malak v. Malak, and Amro v. Iowa District Court for Story County.
One is a 1986 case, one is a 1988 case. This relates to the whole society,
not just to women--and it affects children. In Malak v. Malak, a Muslim
couple traveled and lived around the world, including the United States,
Abu Dhabi, and Lebanon. Now, the interesting part about this, is that when
the custody case came to the United States, there was already a custody
decision in Abu Dhabi and a custody decision in Lebanon. What did the
court say about the two custody decisions in the Muslim countries? First
of all, let me say that the United States decides, state by state, on
custody issues using the standard of the interest of the child. The courts
look at what is the best interest of the child and they usually act
accordingly. In the United States, they tend to think that the interest of
the child is to give custody to the mother. Now, the court got a fax from
the American embassy in Abu Dhabi, telling them what an Abu Dhabi court
would do--what was the basis of the determination in Abu Dhabi. The
embassy cable said that, invariably, the custody will go to the father,
because there is an automatic rule which says "at age such and such,
it’s to the mother; at age such and such, it’s to the father."
The American court said: an automatic rule will not work in the United
States, because it does not have anything to do with best interest of the
child. What did it do with the Lebanese decree,
which is also a Shari’ah court decree? It took it a lot more seriously.
And if our Muslim courts in the Arab world and other parts of the Muslim
world know about this, then they can properly formulate their decrees so
that they will be enforceable and respected on the principle of comity in
American courts. First of all, the court in Lebanon gave notice to the
defendant [wife] that there is a case pending against her. It gave her the
opportunity to be heard--it gave a temporary injunction for fifteen days,
and if she showed up, the court would reopen the case and hear everything.
The court in America was impressed by the fact that there was procedural
justice. The American court said: "if the Shari’ah court in Lebanon
follows our standards of the best interest of the child, and they have
procedural justice, then we will be willing to honor it through
comity." And so, here is what the court said about the Lebanese
court: the Sharei [sic] court has taken into
consideration, while pronouncing the two orders relating to the custody of
the children Fadi and Rubah, several human, educational, social,
psychologie [sic], material, and moral factors, for the purpose of
insuring the best interest of the two children and their present future
and on the long run. And then it gave some factors, for example: . . . the court has considered the best
interest of the two minor children at a long range in respect of avoiding
their exposal to shredding, loss, spiritual and physical deficiency
resulting from the radical change which will take place in case the
children are transferred to a world strange to them in all respects
without having their friends or relatives with them . It goes on for pages. But at least the
Shari’ah law went through the considerations that are important for an
American court. And therefore, while the Abu Dhabi decree was not even
looked at in the United States--it had no procedural justice and it had no
best interest of the child standard--the Lebanese Shari’ah court was
taken very seriously, and in fact its decision was enforced on the basis
of comity. And that tells us how we also have to educate the Muslim courts
outside the United States. There was another case from Gaza, Ali v.
Ali (New Jersey, 1994), in which the husband said "in our country,
this is how we do custody." And, he not only talked about the Gaza
decree--which had no procedural justice and best interest of the child
standard--but he tried to make an arrangement with his wife that they will
drop the case in American courts, and relegate it to a group of Islamic
scholars as to who gets the custody. The American judge heard about that
and was incensed, and said that he would not relinquish jurisdiction to a
bunch of Muslim scholars. That is, again, the separation of state and
religion. What the husband should have done is to go to a court in a
Muslim country which would then apply Islamic law using the proper
terminology and the procedures which are examined critically in the United
States, so that the decree of that Shari’ah court would be enforceable
in America. This is what I wanted to point out to you.
It’s not difficult for Muslims to get their rights in American courts,
whether men or women. It’s not difficult. You just have to know what the
law is, how to approach it, how to speak the language, and how to present
Islamic law so that it is not trivialized into something that sells women,
or oppresses women, but get to the real, basic jurisprudence. I think we
can move forward in the United States if we start speaking about Islam in
that fashion. Thank You. Moderator, Laila Al-Marayati Thank you very much Dr. Al-Hibri. I would
now like to welcome any questions that people have. As you know, we
represent the Muslim Women’s League and Karamah. We based a lot of our
discussion on testimony from women in our areas, and we don’t mean to
speak on behalf of all Muslim women whose experiences might be different
from the ones that we have described here today. These are just concerns
that we think are very important, that we as Muslims need to be at the
forefront in dealing with. We are tired of hearing about it in the
non-Muslim and western media, and having to deal with it in the court
system where we are coming from behind, trying to catch up, but we really
need to be ahead. That is the main struggle that we are dealing with back
in the United States that we wanted to share with you from other
countries. And now, we will be happy to entertain any
questions from the audience. Question: The second thing: the mahr mu’ajjal, the
delayed postponed part of the mahr. This is an invention that was done by
later mujtahids. So if you cancel it, you are not doing anything wrong.
Because Muhammad, peace be upon him, did not have anything mu’ajjal in
his practice. Anything that was given as a gift to woman--even a ring of
iron--was a gift; but there was nothing postponed during his lifetime or
in the lifetime of the four caliphs after him. This idea of postponed mahr
is a later part of Muslim jurisprudence, and I think we can do without it
if it is against the benefit of Muslims in a society somewhere. A third point is that it saddens me when
you say that the American court will look at the Shari’ah if it goes
with the interest of the child. This is our fault as Muslims, out of
selfishness, the dark-heartedness of some Muslims, it allows the American
courts--which we know is very far from the Islamic ideal, how many
injustices have been committed in American courts--to judge our Shari’ah.
Because we Muslims have failed our Shari’ah. Muslims give a very bad
example, like the many examples you mentioned of Islam and the practice of
Muslims. So, no matter how often you preach Islam, our practice will be
stronger because this is what people see. The last point, I am sure, even in America,
there are many cases of good Muslims, and those don’t go to court. So,
the bad examples that you mentioned, show us that some Muslims when they
are bad they are really bad. Because first they failed God, and after
failing Allah, they will be good for nobody for nothing. So, there are
many good cases that go unwritten, unrecorded because they are good. And
we know many cases of Muslim families living successfully, happily,
looking after each other, in America. One suggestion: many second wives of
Muslim men in America come to Jordan to register, and preserve their
rights Islamically. I know of one; she is an American, she became a Muslim
and married a married Muslim man. Of course in America, as you said, she
will have no rights at all. And she has children. So she moved to Jordan,
to register her marriage and to preserve her rights; she lived in Jordan
for two years, and she’s going back to America. So, maybe this is one
idea that can be given to American Muslim women who are second wives--to
register their marriage in some Muslim country, at least, since America
refuses to have this or to acknowledge this. Answer: Regarding your suggestion about polygamy:
it still puts that second wife at a disadvantage. A lot of these cases
we’re talking about are converts, particularly in the African-American
community, who would have no means to travel to a Muslim country just so
that she could register to have her rights. She deserves to have them in
the country she’s living in. If someone wants to practice polygamy, they
should live in a country where it is legal. Because when you live in a
country where it is not, the second wife has to work twice as hard to get
her rights, and that’s what makes it wrong in that circumstance. Dr. Al-Hibri: The other thing is, remember, any time we
are talking about the law, we’re talking about problems--criminal law,
tort law, whatever. Why would people go to court if they hadn’t reached
the situation of a problem. So, a lawyer looks at the problems and says
"here are the problems of the community, how do we solve them?"
There are a lot of good things that are happening, and the imam can
celebrate them in the masjid, and we can all celebrate them. But what
about the bad things? As a lawyer, I have to make sure that the rights of
all Muslims in the courts are protected. Now, as far as the Islamic contract is a
civil contract, you’re exactly right--and we’re arguing it is very
much like a pre-nuptial agreement. But, because it is put on the paper of
an Islamic Center, the court immediately says, "this is a religious
document." And we’re trying to say, "No. Enforce the secular
provisions"--which is almost everything. But one thing we’re trying
to do in Karamah, if God gives us enough energy and time, is to develop a
Muslim marriage contract which is not one page like all the Islamic
Centers’, but one which will have attached to it an appendix which says
"under Islamic law, a mahr means . . ., under Islamic law, deferred
means . . .," and then the husband cannot say, "Oh, I went to a
French school, I don’t know what mahr means." Plus, you mentioned
the deferred part of the mahr. Abu Zahra is very clear about that. Abu
Zahra says, "this is a cultural custom." You can defer; you
don’t have to defer. You’re absolutely right, but that has been the
custom. (Abu Zahra is a modern Egyptian jurist.) Question: Answer:
About the Presenters Laila Al-Marayati. I am president of
the Muslim Women’s League; I happen to be an obstetrician-gynecologist
and an assistant professor at the University of Southern California, in
Los Angeles. I also have served on the Board of Directors at our Islamic
Center, our mosque in southern California, for three years. I am married,
and the mother of two small boys, and am very happy to be here. Asifa Quraishi is very active in
several Muslim organizations in the United States. She is a member of the
board of Karamah: Muslim Women Lawyers for Human Rights, and she is an
associate of the Muslim Women’s League. Ms. Quraishi is cofounder and an
active member of the steering committee of a group called ‘AMILA, which
stands for American Muslims Intent on Learning and Activism, a San
Francisco bay area Muslim organization of second generation Muslims. They
organize regular seminars and lectures by Muslim scholars from around the
country; they have done human rights workshops, and provide assistance
teaching Islam to local middle and secondary schools in the area. She has
also been very involved in youth counseling and education. She works as an
attorney, as a Death Penalty Law Clerk for the Ninth Circuit U.S. Court of
Appeals, in San Francisco. Samer Hathout received her
bachelor’s degree from UCLA in sociology, and then studied law at the
University of Southern California. She has been very involved and served
in the Hail Moot Court Honor’s Program, and received honorable mention
at that program. She has also received the Miller Johnson Equal Justice
Award. She has made two trips with the Muslim Women’s League to Croatia
to investigate the status of Bosnian refugees, particularly women war
refugees, and she interned at the De Paul University International Human
Rights Law Institute where she compiled data on concentration camps to be
used by the war crimes tribunal for the former Yugoslavia. Samer has
worked as a crisis counselor on a rape hotline. She was the founding
president of the Muslim Women’s League, for which she is an active
member right now, and is the Vice-Chairperson of the Muslim Public Affairs
Council in Los Angeles. Currently she works as a criminal prosecutor in
Los Angeles. Dr. Azizah Al-Hibri. She is a law professor at the T.C. Williams School of Law, University of Richmond, in Virginia, and a former professor of philosophy. She is the founder and president of Karamah: Muslim Women Lawyers for Human Rights, co-founder of the Muslim American Bar Association, member of the advisory board of the American Muslim Council, and the Virginia State Advisory Committee to the U.S. Commission on Civil Rights. She has edited a number of books, and contributed to them, including books on: logic, women in Islam, and religious and ethical perspectives on population issues. Her recent articles include a critique of personal status codes in select Muslim countries, Islamic constitutionalism, the concept of democracy, and marriage laws in Muslim countries. She practiced law on Wall Street for many years before she returned to teaching in the University.
Source: Muslim Women’s League Karamah:
Muslim Women Lawyers For Human Rights |