December 09, 2011
The N. C. Court of Appeals this week handed down an interesting decision for those who are concerned about Sharia Law. It did so by voiding the marriage of a woman who was married to the plaintiff in the case, who was seeking an annulment on the grounds of bigamy. That is, the "husband"/plaintiff contended that his marriage of 12 years and three children to his "wife" was null and void because she had previously been married under Sharia Law to another man and that marriage had never been legally dissolved.The COA held that the first marriage was legal, even though it was performed by a "minister" who was neither an imam nor a licensed minister. More specifically the court held that while the first marriage was voidable under North Carolina law no legal steps had ever been taken to do so and thus the original Islamic ceremony was upheld as a legal marriage. So because the "wife" was already married at the time she married the plaintiff their marriage was null and void.
The decision was a split 2-1 decision so it is appealable to the N. C. Supreme Court. The woman says she is looking for legal assistance to appeal because she cannot afford to.
You can read the decision, and the dissent, by clicking here.
Commentary
This is an interesting decision with potentially far reaching implications. Here's why we say that:
The COA decision is in effect upholding and applying Sharia law. It validates an Islamic marriage ceremony that apparently was nothing more than a friend pronouncing the couple married. There was no marriage license involved. There was no bonafide minister participating. Yet the COA upheld the marriage, holding in effect that it continued until a court annulled it or granted a divorce.
The "wife" contended that she was divorced because she complied with Islamic law for dissolving a marriage but the COA rejected this argument. That, it seems to us, creates a real dilemma. Hopefully the Supreme Court will straighten all that out.
As the COA majority decision spells out, N. C. has a long precedent of recognizing all kinds of marriage arrangements in terms of the religious foundation upon which they are based. But religious beliefs do not trump state law. For example, the Legislature mandates a license being obtained. Likewise state law has a long history of prescribing qualifications for marriage, such as age and as in this case the requirement that a person can be legally married only to one person at the time. Moreover, state law requires that "an ordained minister of any religious denomination," a "minister authorized by his church" or "a magistrate" officiate the wedding.
The Court ruled that the first marriage could have been voided but because no legal steps were taken to do so that it remained valid. It thus seems to us the Court has created a paradox. On one hand it enforces a religious based marriage that is not recognized as having met the legal requirements but on the other hand it refuses to accept the religious divorce, requiring instead a civil termination.
But the more profound issue here is the question of what constitutes a legal marriage. It seems to us that the Court opens up a real Pandora's box when it accepts as legal, a marriage created under some belief system but outside the bounds of the civil legal requirements.
We think the Supreme Court, if the lady can get enough money to get her case heard, should rule that the first marriage never existed in the first place because it did not conform to the legal requirements of the state in which it was performed. Our courts have no business whatsoever enforcing religious law. Religious law of any kind.
We have always had a problem with the concept of "common law marriage" wherein the dispositive issue is not the ceremony but whether the couple lived as husband and wife and represented themselves as married. Rather, the courts should be restricted to interpreting the statutory specifics of marriage and divorce and stay out of the religious aspects as well as deals or arrangements a couple might concoct.
Call your next case.
