Within the marriage

So far we have predominantly discussed areas where Islamic and US law are different, but not directly conflicting. There are, however, other practices where some might regard the two laws as in direct opposition, and Muslims fall on both sides of the question of which law takes precedence.

Polygyny is one of these areas. Because classical interpretations of Islamic law allow men to marry up to four wives, some Muslims believe that the US prohibition of polygamy directly violates their freedom of religion and, believing that Islam supersedes secular law, proceed to become part of a polygynous marriage. Thus, we see for example, in N.Y. υ. Benu, a husband giving custody of his children to his wife after he married a second woman, and other reports of Muslim polygynous marriages (Little 1993; Taylor, interview, 2000). Aminah Beverly McCloud relates the dilemma faced by many US Muslim women whose husbands take a second wife — they feel religiously bound not to object to a practice God has permitted. She notes that even some Muslim leaders engage in this practice, leading to ‘marriages of years of devotion falling] into chaos’ (McCloud 2000: 141-2). Generally, the first wife in these marriages is recognized as legal under US law, but any subsequent wives and their children are not. These later wives are ‘married’ to the husband in Muslim ceremonies either in the USA by imams willing to do so, or in ceremonies overseas where polygyny is legal. Because of the religious dilemma, however, McCloud states that many of these women file charges not for bigamy but for some sort of fraud. She also states that ‘all of the potential legal consequences of the practice of polygamy in the American context have not yet appeared, but... are bound to find their way into the courts as more and more women seek alimony and child support’ (ibid., p. 142).

Clearly, the majority of the population does not engage in polygynous marriages, but views on the practice differ, as can be seen in a book by Abu Ameenah Bilal Philips and Jameelah Jones entitled Polygamy in Islam (1985), providing a lengthy social and legal justification for the practice.

Moreover, many Muslims themselves committed to monogamous marriages nevertheless recognize Muslim marriages involving more than one wife as Islamically valid. Thus, in an online Muslim advice column responding to a woman wondering how to marry a man already legally married in the USA, the columnist does not question the Islamic legalities of such a marriage, but nevertheless advises against it because of the woman’s uneasy feelings and apparent lack of knowledge of the first wife (Hanifa 2000). Others, on the other hand, argue strongly against Muslims participating in such marriages in the United States, urging that the Qur'anic norm is monogamy and pointing to Classicaljuristic arguments constraining the institution of polygyny (al-Hibri 1993: 66-7). For example, Azizah al-Hibri cites classical Islamic scholars stating that if marriage to a second wife causes the first wife harm, it is forbidden, and also notes Islamic schools of thought allowing the couple to include a clause in the marriage contract barring the husband from taking more wives. Similarly, Amina Wadud (1999), in addition to critiquing several Iraditionaljustifications for polygyny, undertakes her own textual interpretation of the relevant Qur'anic verses and sets forth an alternative reading of the permission for the practice, emphasizing its specific limitation to the just treatment of orphans. The Muslim Women’s League makes the additional argument that because the subsequent wives are not legally recognized under the laws of the state, then by definition they cannot be treated equally, a requirement of Islamic law in polygynous marriages.³⁸ That is, subsequent wives in the United States not only do not have any rights to general spousal benefits (such as insurance benefits and inheritance) but they also necessarily lack any avenue of enforcing their spousal rights if a husband chooses to abuse or divorce them, since the marriage will have no validity in the US courts. There is also the possibility of a prosecution for bigamy if the authorities are so inclined.

Another argument against American Muslim men marrying more than one wife relies on the simple Islamicjurisprudential principle that one must obey the laws of the land where one chooses to live, as long as they do not prevent one from performing one’s religious obligations. Since polygyny is at most permitted in Islamic law, rather than being an obligation, it is held that US laws requiring monogamy should be respected.

Another area of potential conflict in types of allowable marriages lies in the question of inter-religious marriages. Classical Islamic law allows Muslim men but not women to marry non-Muslim monotheists, those who belong to religious communities recognized as ‘people of the book’, whereas US law puts no religious restrictions on spousal partners (Esposito 1982: 20; Doi 1984: 36). Given the melting-pot nature of life in the USA, many Muslims, both men and women, do indeed marry non-Muslims (Haddad and Lummis 1987: 148).³⁹ While those who criticize Muslim women marrying non-Muslim men find a basis in standard fiqh positions, some object also to Muslim men marrying non-Muslims, on the basis that this constitutes an unfair double standard or results in a reduced number of Muslim men whom Muslim women may marry (Haddad and Lummis 1987: 146; Marquand 1996).⁴⁰Others argue that the allowance is limited to those living under Muslim rule and therefore does not apply in places like the United States.⁴¹ Azizah al-Hibri makes a 5⅛n'α-based argument against both Muslim men and women marrying outside the faith, arguing that the original reason (fiilld) for the Islamic prohibition of women marrying non-Muslim men has now changed in our context. That is, the reason classical Muslim jurists denied a woman the option of marrying a non-Muslim man was to protect her from the husband’s potential denial of her free exercise of her religion (acknowledging the patriarchal nature of marriage, and the fact that Christianity and Judaism prohibited interfaith marriages at the time).

Al-Hibri concludes that this 'illa still exists, but argues further that additional realities of the American Muslim context (i.e. the likelihood of a Muslim man losing custody of his children and/or being unable to fulfil the Islamic obligation to raise them as Muslims if divorce from his non-Muslim wife occurs) mean that Muslim men also deserve the protective attention thus far granted to Muslim women, and, thus, the prohibition of inter-faith marriage should be extended to them (al-Hibri 2000: 68-9). Nevertheless, marriages in which the husband is Muslim and the wife Jewish or Christian are generally accepted by most US Muslims. For women marrying non-Muslim men, on the other hand, there is usually a stigτna, or worse. Many Muslims follow Islamic fiqh^,s rejection of women marrying outside the faith, and most respected imams will not officiate at such ceremonies (Haddad and Lummis 1987: 145).⁴² Muslim women’s reactions range from disregard of the rule and consequent critical attitudes, to full support and justification of the fiqh position as beneficial to society and family. In between are many who reluctantly accept the rule, and perhaps seek alternative interpretations.⁴³

Some inter-religious marriages involving Muslims are inter-cultural marriages between indigenous US citizens and immigrants. When the immigrant is the husband, mainstream US culture has developed the fear that the husband will ultimately abscond with his children (and perhaps the wife) to his country of origin, depriving the wife of all spousal rights recognized in the USA. The 1987 book and corresponding him titled Not Without My Daughtef ' arguably largely created and certainly entrenched this fear in the wider US public (Baker 2002), resulting in particular attention in the State Department information on ‘International Parental Child Abduction’.⁴⁵ A piece featured on its travel website titled ‘Islamic Family Law’ is posted to ‘make clear the basic rights and restrictions resulting from marriages sanctioned by Islamic law between Muslim and nonMuslim partners’, noting that ‘for Americans, the most troubling of these is the inability of wives to leave an Islamic country without permission of their husbands, the wives’ inability to take children from these countries, and the fact that fathers have ultimate custody of the children’.⁴⁶ While it appears to be a sincere effort to summarize Islamic family law for those living in the United States, the State Department’s narrow focus on only Muslim-non-Muslim marriages skews the tone of its report and the reality of these issues.

Clearly, the Jtroblems addressed (inability to leave without permission of husbands, barriers to custody) are faced by all women living under Islamic law, whether Muslim or non-Muslim. The State Department’s limited Uewperpetuates the√Vo∕ Without My Daughter stereotype that Muslim men are a particular threat to non-Muslim American women. Moreover, stereotypes in the dominant US culture that portray Arabs and Muslims as violent fundamentalists oppressive to women further fuel distrust of inter-cultural Muslim marriages in the non-Muslim population.⁴⁷ As will be seen in the next chapter, this distrust sometimes extends to Muslims and Islamic law generally, and has a direct impact when Muslim marriages end up in divorce courts.⁴⁸

Stereotypes also frequently confuse religion with culture, again leading to mistakes about what exactly is part of Islam and Islamic family law. For example, though arranged marriages (in various forms, ranging from complete parental control against the wishes of their children to family-arranged meetings of a potential couple) are found in many Muslim cultures (Haddad and Lummis 1987: !49—51), Islamic source texts do not require third-party intervention as a necessary or even preferred process of finding a spouse. Muslim scholars in the USA, such as the late FazIur Rahman among others, point out that there is nothing in the Qur'an or hadith ‘asking Muslims to have arranged marriages’ (Iqbal 1987). This is true even in the face of much of classical Muslim jurisprudence requiring guardian involvement in marriage negotiations for minors and even for adult women, reasoning (among other things) that this is necessary' for their protection. Some Muslim women activists emphasize the non-Qur'anic basis for these guardian rules in arguments for reform beyond patriarchal interpretations in Islamic law (al-Hibri 2000: 60; Fadel 1998). Similarly, wedding particulars, from clothing and food to where the bride and groom sit, all vary from culture to culture, none of which commands Islamic official sanction, but may often be confused as such (Chang 1990).⁴⁹ It is not just non-Muslims who confuse culture with religion.

Some Muslims assume cultural practices that have been within their families for generations are actually required by Islamic law. Thus, many debates within US Muslim families, whether they are inter-generational or inter-cultural, often superficially seem to be about religion, but are really based on a mixture of cultural and religious/legal norms. These debates include, for example, arguments over the level of parental involvement in choosing one’s spouse (and participation in wedding formalities themselves), the amount of pre-marital contact future spouses may have, the nature and amount of dower, allocation of household responsibilities (financial and physical), and spousal activities and work outside the home, to name just a few. Many of these issues do appear in juristic discussions (both classical and modern), but usually in the context of what role custom plays in law- making, as these issues are not specifically addressed in the Qur'an and hadith (see "Intellectual Resources’ in Chapter 10). As the community evolves and migrates, discussions of these topics become complicated as the line between law and culture blur for the average Muslim.

Male superiority within the hierarchy of the family is one culturally validated but also often Teligiouslyjustified ideology-(Marquand 1996).⁵⁰ Many US Muslims believe in a patriarchal final authority over family matters, and look to Qur'anic verses in support of this belief. Others resist this notion as an antiquated cultural preference, and look instead to Qur'anic and Islamic concepts of partnership and equality of the sexes (Wadud 1999, 2000; al-Hibri 2000; al-Faruqi 2000; Barazangi 2000; Muslim Women’s League, ‘Gender Equality’, n.d.). Both philosophies, and variations in between, can usually support harmonious and successful families. However, the idea of male superiority sometimes is used to justify physical and mental abuse of other family members, especially women and children, as a Muslim male’s right, presented as somehow endorsed by the shari'a (Kadri, interview, 2000; Winton 1993).⁵¹ I^π th^e words of Kamran Memon (1993), an attorney and one of the first in the US Muslim community to write publicly on the subject:

Tragically, some Muslim men actually use Islam to justify’ their abusive behavior... considering themselves to be Islamically knowledgeable and disregarding the spirit of Islam, they wrongly use the Qur'anic verse that says men are the protectors and maintainers of women to demand total obedience and order their wives around... These men misinterpret a Qur'anic verse that talks about how to treat a disobedient wife and use it as a license for abuse.⁵²

Even worse, as Memon and other Muslims note, is when battered Muslim women accept these religious claims and suffer the abuse, believing it to be some sort of religious duty on their part, and are unfortunately supported in this belief by Muslim community members, even leaders (Kadri, interview, 2000).⁵³

This attitude, of course, disrupts the family unit with its acceptance of violence and general instability, and even more seriously if it drives the wife to flee the household or causes social workers to remove children from a dangerous family setting. Recently, members of the Muslim community have begun to recognize the problem of domestic violence, publicly speak against it,⁵⁺ and take proactive steps inspired by Islamic principles to respond to the situation (Nadir 2001: 78; al- Khateeb 1998: 17; Syed 1996; Memon 1993). For example, the Peaceful Families Project, a programme funded with a $76,000 grant from the US State Department and spearheaded by Sharifa al-Khateeb, has held conferences in several major American cities dedicated to educating and advising the American Muslim public to combat domestic violence in Muslim families (Kondo 2001). Moreover, a number of Muslim organizations have been established specifically to assist battered Muslim women, or have developed programmes targeted at this objective, through education, creation of shelters and providing legal and counselling assistance.⁵⁵

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Source: Welchman Lynn. Women's Rights and Islamic Family Law: Perspectives on Reform. Zed Books,2004. — 328 p.. 2004

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Within the marriage

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