The third point I want to make: is there substantial differences in laws regarding women and divorce (which seems to be the MAIN point of contention in allowing Sharia in family law arbitration)? The gist of the accusation is related to domestic violence and forcing a woman to remain in a dangerous marriage.
Let's examine several points here:
What do Sharia and Halakah say about divorce and how is it applied?
Under Sharia - it's complicated for sure, with a lot of conditions. A general look offered below.
From the UK Islamic Councel:
TALAQ
TALAQ
Due to the financial responsibilities which he has to bear, the right to divorce in Islam is primarily given to the husband. A Muslim who wishes to divorce his wife is therefore advised – in the first instance – to ask for an arbitration meeting, arranged by elders of the couple so that a reconciliation may be reached. If such efforts fail and the man sincerely thinks he cannot live a harmonious life with his wife, he may divorce her either verbally or in writing. In both cases, it is recommended for there to be two witnesses present on the occasion of the pronouncement of such a divorce.
A man should (a) divorce only once and (b) only during the time when his wife is not on her menses and (c) there has been no sexual contact with her since the time of her last menses.
After a divorce is pronounced by a husband, his wife must wait for a given period (‘iddat’). During this period, the wife is allowed to stay in the same house, but they can not have sexual relation amongst them.The man is allowed to take her back either verbally saying “I TAKE YOU BACK“, or physically, by having intimate relation with her. if, after this waiting period, the husband fails to take his wife back, then the wife is completely divorced, and must leave the matrimonial home immediately.
It is also recommended to have two witnesses present in the case, where the husband decides to take back (‘ruju’) his wife, before the end of the iddat.
Where a man has pronounced three divorces, on three different occasions, he can neither take back his former wife, nor remarry her.
The Council issues a divorce certificate on the basis of “talaq nama”, signed by the applicant in the presence of two witnesses. The man is required to pay the dower amount in full to the woman.
KHULA
The situation in which the wife initiates divorce proceedings is known as Khul’a. Once the husband agrees to divorce her i exchange for some money or the remission of her dower, the divorce is known as Talaq. It is as valid as the Talaq given by the man of his own initiative. Khul’a depends upon the agreement reached between the two parties. If the husband agrees to give Talaq provided that his wife either abandons her right to the dower (if the dower has not yet been paid) or return back the amount of the dower to the husband (if the dowry has been paid).
In the time of the Prophet (SAWS), the wife of Thabit b. Qais asked her to return back to him the garden he gave her at the time of marriage as dower. She accepted this demand and got the Talaq.
Once the husband agrees to Khul’a, he is asked to pronounce TALAQ in exchange for the above mentioned.
Women's Rights in Islam regarding marriage and divorce:
Women’s Rights in Islam Regarding Marriage and Divorce
Divorce existed before Islam, but the advent of Islam made the divorce process much more favorable to women. Women’s property is not divided during a divorce.[58] Whatever a woman earns or is given before and during the course of the marriage remains her property if the marriage ends.[59] This prevents men from taking advantage of women’s property or wealth through marriage. On the other hand, the man’s property is divided if a divorce occurs according to the couple’s marriage contract.[60] A woman is entitled to support and maintenance from her former husband if she requires.[61] There are also special instructions if divorce occurs before the marriage is consummated and before or after the dowry is set.[62]
Islam also instituted a three-month waiting period for women called Iddah.[63] During this three-month period women are not permitted to re-marry.[64] The basic reason for this rule is to determine whether the woman was pregnant before she remarried so the proper father could be ascertained.[65] This practice also ensures the child’s identity and lineage can be accurately determined.[66] A husband and wife are also allowed to attempt reconciliation during the waiting period.[67] However, men are specifically instructed not to take back their wives to “injure or take undue advantage” of them.[68]
Determining the proper procedure for divorce is highly dependent upon the timing of the divorce, the reasons for divorce, the client’s Islamic School of Thought (Hanafi, Hanbali, Maliki, and Shafi), whether he or she is Sunni or Shiite, and the circumstances surrounding the divorce.[69] The scope of this article cannot cover all the conceivable scenarios or grounds for divorce but will seek to address the basic requirements for divorce. [70] It is important to keep in mind different schools of thought can cause some variances in the basic structure described below.
Unlike sharia, divorce in halakah is is a little less complicated, in that there are fewer conditions necessating different rules:
From:
Judaism 101: Divorce
Judaism recognized the concept of "no-fault" divorce thousands of years ago. Judaism has always accepted divorce as a fact of life, albeit an unfortunate one. Judaism generally maintains that it is better for a couple to divorce than to remain together in a state of constant bitterness and strife.
Under Jewish law, a man can divorce a woman for any reason or no reason. The Talmud specifically says that a man can divorce a woman because she spoiled his dinner or simply because he finds another woman more attractive, and the woman's consent to the divorce is not required. In fact, Jewish law requires divorce in some circumstances: when the wife commits a sexual transgression, a man must divorce her, even if he is inclined to forgive her.
This does not mean that Judaism takes divorce lightly. Many aspects of Jewish law discourage divorce. The procedural details involved in arranging a divorce are complex and exacting. Except in certain cases of misconduct by the wife, a man who divorces his wife is required to pay her substantial sums of money, as specified in the ketubah (marriage contract). In addition, Jewish law prohibits a man from remarrying his ex-wife after she has married another man. Kohanim cannot marry divorcees at all.
In Halakah, the man MUST initiate the divorce, but he can not divorce with out the wife's consent; in Sharia there either can initiate the divorce. Both include payments according to the women's dowry or marriage contract, both also require support to the woman if initiated by the man. Both incorporate certain inequalities in regards to women in the process. Both seek to preserve the marriage. I'm not going to go into Catholocism for this, but I suspect there are similar points.
So - how do religious divorces really work in these communities,
how disproportionately affected are women's rights? What is happening here? Again, it's complicated. In many ways, the growth of the Muslim community in western countries is a recent phenonanum, and involves immigration from extremely conservative traditinal religious cultures into very liberal ones. One of the consequences is increase in divorce. Traditional cultures and their associated religions place a high value on the sanctity and preservation of marriages and frequently, an associated devaluation of women within a marriage - something women can more easily escape from in western countries.
Divorce among American Muslims: Statistics, challenges & solutions | SoundVision.com
As Jewish Divorces Multiply, So Does Bitterness
Lastly - can religious divorce laws complicate abusive marriages? Absolutely.
Muslim women left to 'shop' for an imam when they need a religious divorce
So how does all this relate to the OP?
First, what do American Muslim's want? The leading question and an examination of the often repeated claim that they "want Sharia to be the law of the land". The implication of the claim is that they don't want the Consitution or a secular legal system.
This leads to the next set of questions - what is Sharia? What does it mean to Muslims and how is it practiced, and specifically what does it mean to AMERICAN Muslims? This led to examining how Sharia is used in the US by American Muslims - specifically, in religious councils that provide religious divorces or marriages, or in civil matters such as contracts, banking, family law.
This led to further claim that allowing such uses of sharia supported domestic violence of women and eroded women's rights.
There are devout American Muslims who wish to live by Sharia. The best way of understanding what that means is to look at a very similar religious system already in use in a more familiar community: the American Jewish community. That is why I brought Halakah which has many similarities to Sharia; which includes both penal and civil aspects of law, which encompasses an entire way of life that expresses the followers spirituality and devotion to God, and which can be interpreted and followed in many different ways. Last, but not least, both are based on ancient cultures where women had a lesser value then men.
Given that, I have to ask:
Why is Sharia and the American Muslim community specifically singled out for condemnation and why is there an adament refusal to allow it's use in civil matters when it's close brother, Halakah is accepted in our communities and no one says anything about it supporting abuse of women, or defying the Constitution?
In no cases, do any of these systems enroach on or over turn the constitution, or go against US law. When it comes to marriage and divorce - their sole jurisdiction is in giving a religious marriage or divorce. The couple still must get a secular one.
Both Halakah and Sharia are extremely important to observant Jews and Muslims in America. Does the fact that they wish to follow their rules, within the context of modern society and the country's prevailing legal system (which many of them do) mean they have no "business being in America" as one poster claimed?
Lastly - by banning the use of Sharia, as defined in it's entirety,
how can you balance that with the American right of religious freedom? Domestic abuse occurs in all religions and societies, religion can make it harder to get free of it, but even without religion, in all too many cases there is an unhealthy dynamic going on that keeps the woman within the abusive relationship. Is it more appropriate to simply ban Halakah and Sharia, and leave religious people with no acceptable means of getting a religious divorce or, to support ending domestic abuse of women in these communities by other means that don't infringe on THEIR religious beliefs?