After successfully employing Islamic law in the U.S. court system, our writer realizes that Sharia and feminism aren’t always mutually exclusive.
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Four or five years ago, the term Sharia, which for Muslims denotes Islamic law, meant scant little to Americans. As I write this in the fall of 2010, America’s perceptions of Islam and Muslims have changed markedly. A few months from now, when Oklahoma voters march to the polls, they will face “question 755” on their ballots. Born out of the “Save Our State” constitutional amendment passed by the Oklahoma legislature earlier this year, question 755 will implore voters to forbid courts from using international law or Sharia law in their decisions. In state legislatures in Tennessee and Louisiana, similar bills await consideration. And in New York, Tennessee, Florida, and California, Americans are fiercely protesting the construction of mosques. These local cataclysms have been fueled by a steady stream of Taliban executions and floggings, all carried out under the supposed imprimatur of Sharia. It is in this landscape, constructed of faraway images of women whose burqas flap about in the dust, as well as of avenging state senators in the American heartland, that I am often asked about the possibility of Islamic feminism.
I grew up in the eighties in a Pakistan that had just escaped the shackles of military rule. My own dawning political awareness came at the euphoric time when Pakistan was about to elect its first female prime minister. It had been a grisly decade, one in which Pakistan’s own militarized version of Sharia law had played a defining role. In the late-seventies, in an effort to legitimize his dictatorship, General Muhammad Zia ul-Haque, who had grabbed power in a military coup, initiated an “Islamization” program. With the goal of producing a pure society by criminalizing all temptation, Islamization produced laws whose draconian and misogynistic character was conveniently packaged in Islamic-sounding terms and references. In real life, this meant that men and women could be asked to produce their marriage documents by any police officer. Women on television covered their hair and were never shown having any physical contact with men, leaving children like me to digest British sitcoms so censored that they often lasted only ten minutes.
It is not that preoccupations with Islamic law took up much of my attention in those early years of my life, or that I worried about the fact that legally I counted as only half a witness while my twin brother, with whom I competed and fought daily, counted as a whole. Yet these precepts, because of their existence and their ubiquity, were an invisible yet determinative theme in my life. They dictated, for example, the manner in which our home was arranged, such that an entering unrelated male could be led directly to a reception room in the front of the house, never encountering any women. In later years, it would decide who I was allowed to visit and when, which schools I would be sent to, and myriad other details of my own life and the lives of the women in our family.
My aunt Amina was married before I was born so she didn’t live with us, though she was a frequent visitor. Her visits were a cause of much excitement for us kids, whose ordered lives of school and homework did not allow for many novel experiences. The highlight was the fact that in the early years of their marriage, her husband, Uncle Sohail, rode a motorcycle. This vehicle provided hours of entertainment and speculation. If adults were around, we were sometimes allowed to sit and pose on it, a delight for my brother especially. Once, and only once, I remember my brother and I being given a ride around the block on it. Oh, the exhilaration of the achingly familiar landscape of our block transformed into a whizzing blur of shapes. Other times, Aunt Amina would come alone to spend an afternoon with us, often bearing special treats that she had made for us during the week.
The adult worlds of my aunts and grandparents were separated from us not simply by the boundaries of age, but also of language. My paternal grandparents, migrants from India, spoke a North Indian dialect that I was never formally taught. A quick turn into this language could insulate adult discussions from being overheard by children or servants in a world with little privacy from either. Of course, not being taught does not mean not learning, and at the age of six I could decipher just enough, quickly translating the words falling from my grandmother’s mouth as I played with a doll or stared at a jigsaw puzzle. When conversation slipped into this dialect I became immediately alert that some juicy bit of news was about to be divulged. It is through these shreds that I pieced together my Aunt Amina’s struggles with her in-laws and her husband. After seven years of marriage, she had failed to bear children, and her infertility was the source of unending troubles for her. Subject to constant taunts, she was often treated like a maid, given the crudest of tasks as a reminder of her status as a barren woman. Weddings were particular trials, as she was often excluded from celebrations. In one horrific instance, her oldest sister-in-law would not let her greet and kiss a new sister-in-law, saying loudly to all present that the touch of a barren woman was inauspicious.
Uncle Sohail hadn’t died, but perhaps it would have been better if he had. Instead, he had chosen to take a second wife.
Through the fog of memory it is difficult to know when and where cultural perceptions transmit themselves to children, but I remember often feeling terribly sorry for my aunt. My brother and I, always looking for new playmates who in our imaginations would have piles of new toys to share with us, imagined a childless house to be a singularly boring place. No playmates meant no toys. Aunt Amina proved us wrong every time with a collection of toys she kept just for us. Her little house, fascinating to us because it represented a miniature version of the large dwelling we inhabited ourselves, was decorated everywhere with pictures of children. Babies from all over the world, cut out from calendars and magazines, adorned the walls of the kitchen, living room, stuck between cabinets and even under the glass of the dining table. Shining happy talismans of hope, they formed the silent chorus of encouragement that my Aunt clung to.
It was just another pleasant winter morning when I woke to find Aunt Amina sitting at our breakfast table. Her presence was ominous since she had never, in my ten years, spent a night in her father’s house, always returning to sleep in her husband’s home as tradition and culture demanded. Her hair, always neat in a thick dark braid, was unkempt, her wheat-colored skin, usually flawless, was covered with blotchy tear stains. She managed a wan smile as I, already in my school uniform, looked at her with the mixed curiosity and apprehension of a child who does not yet know how to react to distraught adults. I was given little information that morning, even though I did manage to inquire on my way to school whether Uncle Sohail had died.
I can imagine what my mother must have thought of that question. Uncle Sohail hadn’t died, but perhaps it would have been better if he had. Instead, he had chosen to take a second wife, a woman who worked with him at the bank. Aunt Amina had come to our house after refusing his request to take a second wife. The annex that he had been building all year, supposedly to accommodate visiting relatives, was in fact quarters for a new wife. For three days and nights she had pleaded with him to reconsider, and every time he had refused, reminding her that this was his right as a Muslim man. (Though polygamy is not very common in urban Pakistan—indeed, at the time, I had never heard of it and no one in our family had multiple wives—lately it is being popularized as a religiously prescribed social panacea to the problem of too many destitute women.) My aunt recounted to my grandfather and father, her male guardians, how she had told him that it was better to kill her than to force her to watch him marry and share everything that was theirs with another wife.
In hushed tones, the topic of divorce, or khula, was discussed. How would it happen? Would he allow it? Aunt Amina’s marriage contract, signed years ago, had been drafted by an old imam, who had not thought to add a clause allowing her to petition for divorce. I did not understand the impute of the discussions then. I did know that I had never heard of divorce; the women around me, every single one, were either too young to be married or awaiting marriage or married with broods of children. I invested the idea of divorce with the same foreboding invested in it by the women of the family.
For days, my aunt remained in my grandmother’s room, leaving only to pray after the neighborhood mosque sounded the call. Sometimes she would join us at the dinner table, but she ate little, and did not speak at all. A few times we tried to joke with her, imagining that our childish insistence could lift her out of her misery, but we were unsuccessful. Parades of older male relatives came to the house and had conferences with my father and grandfather, from which all the women were excluded. The imam, who had performed her marriage, came to advise the family of the religious and legal options, providing little solace. The marriage contract he had drafted did not provide any options for her; it did not contain a clause forbidding polygamy, it did not provide for a significant settlement to be paid to her. As a divorced woman she would be destitute, stigmatized, and even more humiliated than as a rejected wife.
Then, one morning, as suddenly as she had appeared, my Aunt Amina was gone. Her belongings, which were neatly arranged on a bureau in my grandmother’s room, had been replaced by the porcelain knick-knacks that had stood there before her arrival. I was told that she had returned to “her” house, her husband’s home. Because the information supplied was so meager and because the uncomfortable silence she left in her wake provided so few clues to what had happened, I spent hours imagining what she must be going through. Her husband would marry this new woman and she would be there to witness it. Weddings are noisy affairs in Pakistan, and the arrival of a bride was always accompanied with fireworks, music, and fanfare. I imagined her standing at the upstairs window of her house looking down into the central courtyard and the other apartment, the one where the new bride would soon live. I imagined her alone, watching her own husband as a bridegroom greeting a new bride. The same relatives who had welcomed my aunt into the family, people who knew her family, who had pretended to care for her, would now sit, consuming large celebratory plates of rice and mutton and sweet delicacies to celebrate the second wife, unconcerned at how a life lay destroyed just upstairs.
The marriage happened. The new wife’s name was never mentioned in our house, a wishful invisibility, perhaps, that became a habit. In the end, their marriage arrangement was both surreal and terribly ordinary in its pragmatism. Her husband rotated wives every week; during “her” week he would live upstairs, take all his meals in her section of the house, and the following week he would switch. In the weeks she was “off,” my aunt was excused from all wifely duties. His affections, of course, were similarly divided; for years hence she would still talk of how hurtful it was to watch them get dressed and go off in the car while she watched from her upstairs window. Much of my aunt’s life was thus defined by this watching from windows, a constant vigil to see how her husband changed as he descended the stairs from her life with him to another one entirely. Divided thus between “off” and “on” weeks, her life oscillated between loved wife and abandoned wife, loneliness and servitude.
In the decades since I migrated to the United States, it was convenient to think of Aunt Amina’s story as something that took place “back there,” that had little or no relevance to my life as a Muslim woman in the U.S. I felt that a clean line could be drawn between the legal secular world in which I was being trained and the transcendent gray area of women’s rights and responsibilities in Islam. Muslim women living in the West could take advantage of rights available to women in the West, get divorced, remarry, and not have to worry that their husbands could take another wife. I was a practicing Muslim, but I did not believe that the messy issue of Sharia had any place in an American courtroom. It was easy, it seemed to me, to leave the vexing terrain of Sharia to be wrestled within the Muslim world.
It was with these assumptions that I began a one-year stint working at a domestic violence shelter in Indianapolis, Indiana. I had just finished defending a dissertation that focused on the choices between religious and gender identity that Muslim women face as members of minority communities in the West. A partnership between the domestic violence shelter and a local Muslim community organization provided a unique opportunity to work with women I had written about. The project aimed to provide legal assistance to Muslim women who were filing for divorce with the idea to show them that the community supported survivors and not their abusive husbands. It was meant to tackle head-on taboos that would otherwise prevent women from seeking separation. Providing a context that was sensitive to religious and cultural identity would help in the transition to independence.
Academia, with its well-known insularity, provides depth but also isolation. So, though I had passed the bar and begun to practice law, I had little experience working with abused women. I was well-schooled on the struggles of Muslim women, including their efforts to redefine the faith from within and to lobby for increasing representation and equality within mosques. But I saw the battle to define positions of equality within American Islam as issues only important to a small activist and scholarly minority, far from the realities of everyday lives of ordinary Muslim women. A secular legal system, in my opinion, provided sufficient protection to Muslim women in diaspora communities. In American law, I believed, lay the bulwarks of equality that would insure that, at least in the West, Muslim women would not be discriminated against.
I picked up Zainab from the motel where she had been abandoned by her husband, Said. Married only a year earlier in Amman, Jordan, she could not drive and spoke little English. Zainab, whose name I’ve changed to protect confidentiality, had left friends, family, and a job behind to be with a man who had promised her a life of comfort in the United States. They had met at a wedding two years before, when her cousin had wed one of his brothers. Punctuated with the romance of the wedding, one of the few instances when young men and women could socialize in Amman without the usual restrictions, they had a few clandestine conversations. During one of these, he had slipped her a small gold ring and asked her to marry him. The act was unusual. Marriages were nearly always initiated by elders in Zainab’s conservative family and the fact that he had taken the step of asking her himself, even if secretly, was indescribably winning to a young girl who had never before been the subject of such attentions.
The couple’s marriage was arranged by Said’s family, who showed up at Zainab’s home a few months after Said’s departure. Zainab remembered well serving tea to his mother, as the old woman inspected her from head to foot without any hesitation at all. Said’s family was known to Zainab’s, but this was the first time they had visited. A little daunted by the severity of her potential mother-in-law’s black attire and scrutinizing gaze, Zainab consoled herself with the thought that she would not have to live with the old lady. When her father called her to his room later that night to formally ask her if she wanted to accept Said’s family’s proposal, Zainab was delighted to say yes. Even though she had exchanged a bare twenty words with Said and had not been alone with him for a single moment, Zainab called their match a “love” marriage.
The departure of many young males abroad has made the transnational marriage a common occurrence. Embellished with the glamour of life abroad, these young men return to their home cultures and are often able to have their pick of brides. Young girls like Zainab, daunted by the specter of marital futures defined by meddling mothers-in-law, expectations of producing broods of children, and often also juggling careers in tough economic times, covet a proposal from abroad. Many imagine that the man himself, after having lived abroad, is likely to have less traditional views and be less dominated by the views of his family, adding to the allure of the match. In the piles of glossy wedding pictures that Zainab and I pored over the days that followed our first meeting, I saw an opulent ceremony attended by hundreds, and a resplendent bride who barely resembled the drawn and terrified woman I saw before me.
Sitting in the brand-new Nissan Altima that Said had bought with the wedding money they had received in Jordan, he looked at Zainab calmly and in Arabic pronounced the words “I divorce you” three times.
Things had unraveled fast after her arrival in the United States. During a hurried “honeymoon” in Chicago, Said appeared preoccupied, a marked and drastic change from the attentive groom of a bare week earlier. Several times during the night, he had stolen outside to talk on his cell phone in rapid English, which Zainab did not understand. It was after one of these conversations, when Zainab insisted on knowing who he was speaking to, that Said struck her across the face for the first time. A stunned Zainab lay in her bed crying for the rest of the night, suddenly filled with trepidation about this new life in which she was all alone. After months of nights spent imagining what America would be like, and how she would decorate her new home, Zainab longed for her childhood room and the bed she had shared with her younger sister.
It was not long after arriving at their suburban condominium that she discovered that Said had an American mistress. He made no effort to hide either his phone calls, his visits to her or the fact that he had no intention of leaving her. In a photograph stuck in a kitchen drawer, Zainab saw that she was an older woman, perhaps even older than Said, who at thirty-five was ten years older than Zainab. Zainab had confronted him that night when he returned home. Why had he said nothing in their long conversations and internet chats over the ten months of their courtship? Why had he married her and told her he loved her when he was in love with someone else? She had many questions for him that night, but in exchange she received only blows. Later that night, he raped her. This became a pattern. Every time she confronted him about leaving her alone while he went to visit his girlfriend, she was punished. After one fight during which she threatened to tell her parents and his family what was going on, he imprisoned her in a closet for two days. He disconnected the land line in the apartment and only allowed her to call home through his cell phone with a phone card. He watched her the entire time and did not let her speak for more than ten minutes. If she gave any indication of crying during the conversation, he promised to punish her. But despite the pain and humiliation, Zainab did not leave. Even as she recounted the story in tears in the shelter office that first day, she insisted that she had wanted desperately for the marriage to work because she did not know how she would face her friends and relatives at home if she were sent back a divorced woman.
Zainab had not spoken to her family in over three months when Said dropped her off that day in front of the Extended Stay America motel where I would pick her up a week later. Sitting in the brand-new Nissan Altima that he had bought with the wedding money they had received in Jordan, he looked at her calmly and, in Arabic, pronounced the words “I divorce you” three times. Then he had gotten out of the car and unloaded her things on the sidewalk. Before driving off, he had handed her a stack of legal papers. In the long days that Zainab spent sitting alone, hungry, and frightened in the motel room, she had gone over each page. They were civil divorce papers from a court in Indiana that pronounced her divorced. Said had signed Zainab’s name fraudulently several times, alleging in the papers that the divorce was mutually agreed upon. Only once did she remember signing a page, which Said had pulled out after a rare meal at a restaurant. Zainab had been so delighted at his affectionate behavior that evening, reminiscent as it was of better days in Jordan, that she had not even read the page before she signed it, only glancing at the English lettering before printing her name. Through this trail of deceptions, Said had managed to legally divorce Zainab without ever entering a courtroom.
There I was, with my first Muslim client, confronting a predicament where the American legal tools at my disposal did not promise the best result for my client.
Poring over Zainab’s case in those first few days, I felt dejected. In recent decades, most states have passed legislation that makes divorce a “no fault” issue. This means simply that if either a husband or wife asks a court for a divorce, it is automatically granted without anyone having to prove conditions such as adultery or abandonment, as was the case in decades past. Divorce in America is no longer punitive and courts want to stay away from deciding whether the husband or the wife is responsible for the breakdown of the marriage, an issue considered legally irrelevant to their future lives. All of this makes sense in a post-feminist society where women can marry and divorce at will and are unlikely to be stigmatized by the breakdown of a marriage. In a world of blended families and frequent divorces, few judges imagine a marriage as short as a year to have significantly impeded the life of either the husband or the wife. Spousal support, or the idea that the husband should have to pay his wife till she gets back on her feet, is largely unimaginable. While I could get her case re-opened by demonstrating the fraudulent circumstances behind the divorce decree, there were few options to get her much-needed monetary support beyond the basics of survival that were available at the shelter.
And so I faced the task of explaining an American legal reality of freedom and consent to a woman who had been married under circumstances that could not have been more different. Zainab expected spousal support and her argument for it was simple: she had given up everything to be married and feared the pain of an ineradicable stigma if sent back to Jordan. Again and again, she would ask me about her rights under the Islamic marriage contract, and repeatedly I would tell her that an Indiana court would not enforce a marriage contract based on Sharia law. Then she would exclaim, aghast, that if she could not get any rights or restitution under Islamic law, what indeed were her options under American law? My response, that all she would receive from an American court was a legally recognized divorce, no property, no spousal support, and no amount awarded for repudiating the marriage contract, was impossible for Zainab to digest. “How can this be?” she would ask. “This is America. Women are supposed to have rights here. How can a judge tell me that I deserve nothing after having been abused and abandoned?”
And so there I was, with my first Muslim client, confronting a predicament where the American legal tools at my disposal did not promise the best result for my client, a Jordanian Muslim woman. In my legal training, as well as my academic work, my focus had been almost entirely on the task of introducing women just like Zainab to the idea that the American legal system allowed them a level of equality and self-realization that was not yet available in Muslim countries. What indeed was fair in this case? The acknowledgement that Zainab had been wronged and deserved restitution, or treating her like any other American woman seeking a divorce? Should Said be treated like any other American husband whose marriage hadn’t worked and who wanted to be with another woman? Should Zainab’s unique situation as a Muslim woman whose chances of remarriage were severely affected by her divorce be considered in the case or ignored? More importantly, should Said have to pay to support a woman he had only been married to for a little over a year?
As a lawyer, I had been trained to find the fair and just result for my client, one that would make her whole and give her the best chance at rebuilding her life. And ironically, it was Zainab’s Islamic marriage contract that provided the best hope in this regard. Unlike the perfunctory and poorly drafted marriage contracts often used in my native Pakistan, Zainab’s contract had been drafted by an attorney, duly signed and witnessed, and had certified translations in English. Its clear stipulations mandated not only that Said did not have the right to contract any polygamous marriages, but that Zainab had the right to divorce him, something otherwise difficult for many Muslim women to do. The contract also imposed additional duties in the event of divorce upon Said. Not only did he have to provide spousal support for two years, but pay a pre-fixed amount, ten thousand dollars in this case, to Zainab if he chose to divorce her. The terms of the contract were indeed hopeful if they could be enforced. But in a climate where just the term Sharia evoked images of the Taliban and of amputations, I struggled to find a way to introduce the contract without allowing for a flood of negativity about Islam and Sharia that might destroy Zainab’s chances of success.
Further research provided more hope than I had expected. After a discussion with some colleagues, I found that the contract, because it had been so carefully worded, fulfilled all the requirements of an enforceable contract under U.S. law. There was no reason that I could not ask for it to be honored as a pre-nuptial agreement. It was this argument, then, that I ended up presenting in Zainab’s case. A few days after we had submitted to the court, we got word that the judge had signed the order and approved the proposed settlement, never questioning the premises of the agreement. The final order of the court asked for support to be paid for two years and the ten-thousand-dollar amount to be paid in installments to Zainab during the same time. Clutching the court’s order that summer afternoon, Zainab was happier than I had ever seen her. Her Muslim faith and American future, it seemed, had come together. Within a month, Zainab had moved out of the shelter and into an apartment and was beginning to take the first tentative steps toward a new life in the United States.
Zainab and Aunt Amina’s stories are separated by culture, time, and the vastly different worlds in which their choices and futures were determined. Together they illustrate the complexity of Muslim women’s interactions with Islamic law. In the patriarchal culture of Pakistan, Aunt Amina remaining a rejected wife was better than being a discarded one. Zainab struggled with the same issues decades later, and yet it was not Western culture or conventions that came to her rescue but the very marital contract that had been so unable to save Aunt Amina. Her story exposed to me the superficiality of the logic that, in America and under American law, justice is a guarantee for women, and that under Islamic law women would perennially be oppressed.
Zainab’s case does not and cannot change the fact that in the vast majority of Muslim countries, Islamic law, interpreted for centuries by men, is being used as a tool to enslave women and enable the sort of tragedies that defined Aunt Amina’s life. But it does present the argument that if things are to change, the recipe lies not in eliminating faith from the legal sphere but rather redefining it in a way that empowers women using the very tools that were used to enslave them.
Cases like Zainab’s, even when they occur in faraway America, represent for Muslim women strategic ways to take back the instruments of law that have been appropriated by male jurists and interpreters for centuries. Arguably, it is in places like Canada and the United States, which believe reform can only go in the direction of providing more rights to women, that this act of crucial taking back is possible. This, then, is the project of Islamic feminism, one defined in small, piecemeal victories that represent a taking back of a realm instead of surrendering it. Zainab was empowered by the outcome of the case not merely because she had received a monetary settlement crucial to her survival, but also because she had, in an elemental way, been able to use her faith to define her empowerment, a prospect denied to too many Muslim women, for too long.
Rafia Zakaria is a U.S.-based attorney and teaches constitutional law and political philosophy.