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Dicle KogaciogluThe United StatesMuslim women in the United States constantly
struggle to reconcile the legal requirements and the
value system of their faith with the United States
system of justice and its system of values. Recent
immigrants seeking a divorce, or the enforcement
of nuptial agreements obtained in countries where
Islamic law is recognized add questions of interna-
tional law to this struggle as well. Muslim family
law is an amalgam of Islamic law and the Medi-
terranean family structure, which anthropologists
characterize as endogamous (practicing marriage
largely within one’s own group); patrilineal (trac-
ing descent through the male members of the fam-
ily); patriarchal (empowering the father with the
formal and final authority); extended (including
three or more generations within the same house-
hold); and polygynous (marrying more than one
wife). These characteristics, previously restricted
mainly to Muslim lands, are today common among
Muslims living in Europe and the United States. As
for the Islamic elements of the law, these stem
largely from the Qur±àn, the practice of the Prophet
(sunna), the unanimous opinion (ijmà≠) of the
learned elders (≠ulamà±), and the juridical opinions
of regional schools of law (madhàhib). Family law
issues in the United States are based on this classi-
cal framework, whereas those stemming from judg-
ments obtained in the Muslim world may also
include secular laws unique to individual Muslim
countries.
For Muslim women, therefore, painless solutions
to marital woes are understandably difficult to pro-
cure given the need to comply with the dictates of
faith, law in forum, and the protocols of transna-
tional law. Prenuptial agreements, for instance, dis-
play strong biases that are clearly Islamic, whereas
issues of divorce display equally strong United
States juridical biases. Those with marriages sol-
emnized in accordance with Islamic law, in the
United States or abroad, may turn to the United
States courts to enforce settlements obtained in
the united states 473accordance with Islamic sacred law, or to rescind
such settlements. At times the intent is clearly mali-
cious, as in the case of spouses of dual citizenship,
who attempt to deprive their partners of a share in
the marital estate by obtaining favorable dissolu-
tions only available in a Muslim country, and then
enforcing the same through the United States courts.
Contrariwise, they may challenge such enforce-
ment efforts by invoking the undue entanglement
clause of the First Amendment or public policy
arguments. United States courts may also be asked
to adjudicate extra-judicial dissolutions, such as
a †alàq, which men generally obtain through the
local mosque within the United States, or by mail,
through a foreign court that recognizes out-of-
court divorces, and which they then present to the
United States courts for ratification.
While all such issues hinge to a lesser or greater
extent on questions of jurisdiction, domicile, or the
undue entanglement clause of the First Amend-
ment, in the case of overseas judgments there is
additionally the issue of comity. Whilst not a law as
such, the principle of comity is nonetheless a doc-
trine of reciprocity to which United States courts
defer because it ensures the recognition of United
States judgments elsewhere. Comity gives due
recognition to cases originating in foreign judg-
ments but only if such cases comply with two con-
ditions: first, that the foreign court in question has
the required jurisdiction, and second, that its adju-
dication, in both substance and procedure, does not
offend United States public policy. On the question
of jurisdiction, the State of New York has refused
to recognize unilateral divorce (†alàq) within the
United States because all divorces so obtained, the
court ruled, must comply with the laws of the state
(Shikoh v. Murff). And on public policy, the courts
have ruled that comity will not extend to custody
arrangements procured overseas under the influ-
ence of Islamic law because the law discriminates
against women. That in Islamic law, for example, a
child, even while in the physical custody of the
mother, remains nonetheless under the guardian-
ship of the father was considered offensive to pub-
lic policy (Amin v. Bakhaty 2001 WL 1223612
[La.] [2001]). But United States courts also seem to
suggest that, whilst structurally indistinguishable
from long-established Arab social practice, Muslim
family law nonetheless is flexible enough to comply
with the public policy of the United States.
Marriages performed by the clergy are recognized
by the United States courts, but the same is not true
of dissolutions procured outside the jurisdiction of
a formal judicial system. The primary instrument
for dissolving Muslim marriages, however, is †alàq,