The same week that Republican convention delegates unanimously voted for a platform provision stating that judges should not consult foreign law or customs to guide them in interpreting American law, the North Carolina Supreme Court ruled on the convoluted case of a bogus Muslim marriage which set the stage for a potentially bigamous Muslim marriage.
North Carolina's highest court sorted through contorted facts and two previous rulings to reach the proper conclusion: that a marriage performed in defiance of state laws -- which regulate ministerial qualifications and marriage registration -- was not valid. The legality of this prior non-compliant marriage had everything to do with how the courts would determine the rights of the husband and wife in the current dispute.
An earlier marriage had involved a Muslim woman participating in some kind of commitment ceremony to a Muslim man. Whether or not the procedures that followed were legally acceptable hinged upon whether a truck driver could legally perform a wedding; whether a properly executed marriage license was required (the state law was later changed to relax licensing requirements); and, whether a verbal Islamic divorce was valid. Also, the record states that the "marriage" only lasted for weeks and was never consummated. Later the same year, the ostensible wife married a different man but this time followed civil marriage requirements.
It should not be surprising that the first union -- and its demise, as it skirted all of the aforementioned solemnization requirements -- later became grounds for a bigamy claim. This bigamy pretext would provide the second husband an escape strategy from child and spousal support obligations. Days after the wife filed for divorce from the second husband, with whom she had three children, the husband filed for an annulment of the marriage. Naturally he claimed that at the time of their legally correct marriage, the woman he assumed was his wife was still married to the husband from the un-formalized union.
What is most disturbing about the proceedings – and many sharia off-record marriages manifest these troubling factors – was the note of "concern" expressed by two of the courts over indications that the husband exploited "not-up-to-legal-snuff" elements of the case to his advantage. The supreme court noted the family court's "concern about the unfairness of the [husband's] inconsistent positions," and suggested that he may have been aware of the wife's prior relationship before he married her.
In a review of over 70 sharia Muslim divorce cases for a policy study, this author earlier demonstrated that it is not unusual for a husband to leverage the sharia customs, which avoid city hall, against the courthouse route, which would enforce civil and constitutional requirements. A wife does not have much of a case against a husband who wishes to escape support or dowry responsibilities when a judge cannot legally recognize the marriage from square one. Even sharia-promoting legal advocacy groups which promote sharia law note the tendency of Muslim husbands to find jurisdictions where there is room to game the system.
The few cases which do make it to the courts are representative of a much larger problem. Adherents of strict sharia law often perform verbal divorces, with the result that many cases are not submitted to a judge. The wife rarely has access to the resources required to contest the terms of the divorce or to appeal an erroneous determination. In this case, there were multiple proceedings as the intermediate court rationalized the terms of the marriage to pass muster, but found that the verbal divorce did not meet legal standards and so concluded that the second marriage was indeed bigamous. The cumulative costs at the end of three trials had to be staggering.
The solution must begin in the mosques and with the imams. In the cases where illicit marriage ceremonies are performed and then registered with the mosque instead of civil authorities, women are susceptible to the schemes of unscrupulous husbands. These practices also serve to normalize sharia codes in defiance of the rule of law.
Another serious policy concern implicated by keeping these marriages off the record is the troubling incidence of sharia polygamy currently hidden from political and legal scrutiny.
As the Constitution vests the states with the retained power to establish law concerning health, safety, and morals (often called welfare), family law is legislated accordingly. While vibrant differences between state policy priorities make for valuable laboratory of democratic comparisons, harmonizing marriage law to require both officiant registration and marriage licensing would go a long way to underscore respect for the civil role in equitably adjudicating divorces and property disputes.
Karen Lugo, Esq., is Co-Director, Center for Constitutional Jurisprudence.