By Rafia Zakaria
16 Feb 2013
When Kansas State Senator Susan Wagle voted for Senate Bill 79 that would ban Sharia law in Kansas, she said that a vote in favour of the legislation was "a vote to protect women". "In this great country of ours, and in the state of Kansas," Wagle said, "women have equal rights."
Her words echoed the sentiments of many of the 33 Senators in Kansas, in March 2012, who voted in support of the law. The Bill passed and was signed into law by the Governor of Kansas. On July 1, 2012, the application of foreign or Sharia law was effectively banned in the State of Kansas.
A mere month later, in August 2012, a court in Johnson City, Kansas, faced the consequences of the ban whose intent was to "preclude[s] the courts from applying foreign law, legal codes or systems that violate the public policy of our state or federal constitutions". It has been widely viewed as precluding courts from applying Sharia law.
Before the Johnson City District Court came the Soleimanis, both from Iran and now divorcing in Kansas. The wife, Elham Soleimani asked the court to enforce their Islamic marriage contract which stipulated a payment of $677,000 from the husband to the wife in case of divorce.
The facts of the case were a saga of love, betrayal and abuse. Faramarz Soleimani had left Iran decades ago, fleeing from the draconian changes brought on by the Islamic Revolution. With him, was his wife Zohra Bamani.
The two arrived in Kansas and opened a restaurant, obtaining amnesty in their new country so that they would not have to return to a much changed Iran. They stayed for 30 years, until Soleimani, now nearly 60 years old, got on the internet and found love again.
His new flame was Elham Moghadem, 24 years younger, living in Iran. Rapt in passion, Soleimani divorced Zohra Bamani and arrived in Iran to marry again. His second marriage took place on July 19, 2009, two years before the Sharia ban and long before either the new husband or the new wife could predict just how bad things would become between them.
In the first heady months of romance, the newly married Elham and Faramarz Soleimani revelled in wedded bliss. To prove the eternity of his devotion to his new partner, Soleimani had her name tattooed on his chest. To prove she was a loving wife, Elham tried her best to get used to Kansas.
The Divorce Case of the Soleimanis
Based on the story told by court records, the end came hard and fast and with an avalanche of court proceedings. On June 1, 2011, less than two years after her marriage to Soleimani - the man she had found on the internet and followed across the world - Elham filed for divorce in the courthouse in Johnson City, Kansas.
Surrounding the divorce petition were allegations and pleadings of domestic violence, assault and battery, rape and even a marital tort case for spousal abuse.
By the time she filed for divorce, Elham, the once beloved bride, was alone, destitute, living in a domestic abuse shelter and looking to American courts to help her after her marriage became a harrowing ordeal.
Her account was one of betrayal, of having been wheedled into marriage by a man who boasted about his great wealth and promised her a fairy tale life in luxurious America. What she had found instead, like so many immigrant women arriving with little known and hardly seen husbands, was a domineering and abusive old man who wished to keep her in servitude.
So, betrayed Elham relied and asked for relief from the Johnson City court on the one thing she felt was in her favour: the Islamic marriage contract (Mehr) signed between the parties during their wedding in Iran.
Based on its stipulations, Elham Soleimani, the wife, could demand the payment of 1,354 gold coins (valued at $677,000) from her estranged husband in the event of divorce. With no other recourse and little prospect of help under the rules of marital property division under Kansas law, she asked the court to enforce the agreement and make her husband pay up.
She was about to be disappointed again. On August 28, 2012, nearly two months after Kansas' much touted Sharia ban went into effect, the District Court in Johnson County refused to enforce the agreement between the parties and grant Elham Soleimani the money she believed was due from her husband under the terms of Islamic marriage contract.
One of the most significant reasons offered by the court for its refusal to do so was the religious nature of the agreement, the precise sort they felt the Kansas Legislature had wanted to ban.
Enforcing the agreement, the court concluded, would "abdicate the judiciary's role to protect such fundamental rights, a concern that was articulated in Senate Bill No 79". If they enforced the Mehr agreement and force Soleimani to pay it, the court felt, they would be violating the ban on Sharia law in Kansas.
Here is where the court in Johnson City, Kansas, went wrong. While it is indeed true that separation of Church and State provisions under the Establishment Clause of the First Amendment of the United States prevents US Courts from interpreting religious texts, the court in Kansas disregarded longstanding precedent that insists that when the stipulations of a contract are clear, its religious origins do not preclude enforcement by a US Court.
One determinative case in this regard was Avitzur v Avitzur (1983), decided in the Second District of New York, where a Jewish woman petitioned the court to force her ex-husband to obtain a religious divorce decree as they had agreed in a contract prior to their marriage.
In Avitzur, the Supreme Court of New York decided that forcing the husband, Boaz Avitzur to obtain a Jewish divorce as per the agreement between the parties was not a violation of the separation of Church and State, and that the court could enforce the agreement despite its religious origins and content.
Foreign Law Not Banned In New York
Unlike Kansas, the State of New York has not banned Sharia or foreign law and so it can safely be concluded that the same case decided in that state would have yielded a markedly different result.
That is indeed exactly what happened in SB v WA - decided in New York in August 2012 - after the decision was issued by the court in Johnson City, Kansas. In that case, a Muslim-American woman married to an Egyptian immigrant, who subsequently divorced in the United Arab Emirates, was able to get a Mehr payment of $250,000 enforced by the court.
The court decided in favour of the wife even though the agreement, an Islamic marriage contract, was entered in a foreign country and had just as much of a theological origin as the case in Kansas.
The issue at hand in both cases, fresh after the onslaught of Sharia ban that roared through the US, is not the issue of separation of Church and State - which has a long history of American jurisprudence attached to it - but rather the issue of the status of women, specifically Muslim women under Sharia law and the role of American courts in relation to it.
The case in Kansas reveals that imposing a blanket ban that refuses to allow for the consideration of the specifics of a case or the particularities of the position of an individual Muslim female litigant like Elham Soleimani, does more harm than good.
Where no ban would have resulted in an immigrant woman being able to avail of the resources that would allow her to begin a new life in the US and rehabilitate herself from an abusive relationship, a Sharia ban enabled the opposite, leaving her with nothing and allowing her more established husband to discard her with few consequences.
While all of these facts were argued in the feverish seasons in which the Kansas Legislature along with those in Oklahoma, Tennessee, Louisiana and others debated Sharia bans, the case of the Soleimanis lays in actual terms and actual lives the reduction of their effect and the dubiousness of their purpose.
If protection of women was indeed the issue before the Kansas court, or if the facts of the case were such that the same marriage contract would provide the wife with less than what would be available to her under the marital property division statutes of American law, then it would have made perfect feminist and jurisprudential sense to strike down the agreement under the Equal Protection Clause that provides for just such situations.
This was however, not the case. Under the provisions of stipulated Mehr under her Islamic marriage contract, Elham Soleimani was entitled to more than she would have received under American laws of property division that would be governed the length of the marriage and the property acquired during the two years.
But in Kansas, with its Sharia ban in effect, Elham Soleimani lost out, not because she was a woman, but because the basis on which she argued her case for a future and for empowerment was Islamic.
Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.