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. (...)
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 signed between the parties - which delineated a mahr (dowry) - 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 mahr 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.
Monday, July 29, 2013
Publicada por Miguel Madeira em 08:43