Marriage and the State

My colleague John Witte, who directs Emory's Center for the Study of Law and Religion, had a terrific op-ed in yesterday's Atlanta Journal Constitution.  Many MOJ readers will be interested.

The future of marriage
State laws and religious laws cannot co-exist . . . can they?

 Anglican Archbishop Rowan Williams set off an international firestorm this month by suggesting that some accommodation of Muslim family law was "unavoidable" in England.

His suggestion, though tentative, has already prompted more than 250 articles in the world press, the vast majority denouncing it. England will be beset by "licensed polygamy," "barbaric procedures" and "brutal violence" against women and children, his critics argued, all administered by "legally ghettoized" Muslim courts immune from civil appeal or constitutional challenge. Consider Nigeria, Pakistan and other former English colonies that have sought to balance Muslim Sharia with the common law, other critics added. The horrific excesses of their religious courts —- even calling the faithful to stone innocent rape victims for dishonoring their families —- prove that religious laws and state laws on the family simply cannot coexist. Case closed.

This case won't stay closed for long, however. The archbishop was not calling for the establishment of independent Muslim courts in England, let alone the enforcement of Sharia law by state courts. He instead wanted his nation to have a full and frank debate about what it means to be married in a growing multicultural society. What forms of marriage should citizens be able to choose, and what forms of religious marriage law should government be required to respect? These are "unavoidable" questions for any modern society dedicated to protecting both the civil and religious liberties of all its citizens.

These are quickly becoming "unavoidable" questions for America, too. We already have a lot more marital pluralism than a generation ago —- with a number of legal options now available. Massachusetts offers traditional marriage and same-sex marriage to its citizens. Several more states will likely follow suit. Vermont leads four states in offering straight couples marriage and gay couples civil union, with comparable rules governing each form. A dozen more states are considering this two-tier system. Six states, including California, offer domestic partner registration status, providing straight and gay couples with some of the benefits and protections of marriage. Louisiana, Arkansas and Arizona offer couples either a simple contract marriage or a covenant marriage with more traditional and rigorous rules of entrance and exit.

While these marital options remain firmly under state law, other options now draw in religious law, too, implicitly or explicitly. Utah and surrounding states, for example, house some 30,000 polygamous families. These families and the fundamentalist Mormon churches that govern them are openly breaking state criminal laws against bigamy, but the states will not prosecute unless minors are forced into marriage.

In New York, Orthodox Jewish couples cannot get a state divorce without first obtaining a rabbinic divorce. This privileges Jewish family law over all other religious laws, and it forces some New York citizens to discharge a religious duty to gain a civil right to divorce. In more than 20 states, marriages arranged by Hindu, Muslim and Unification Church officials have been upheld, with divorce the only option left for parties who claim coercion or surprise.

A number of religious couples now choose to arbitrate their marital and family disputes before religious courts and tribunals rather than litigate them in state courts. Courts generally uphold the judgments of Jewish and Christian tribunals in these cases. Muslims, Hindus and other religious minorities are now pressing for equal treatment for their systems of religious arbitration of marriage and family disputes.

Granting Muslims and others equal treatment in these cases does seem "unavoidable" if the parties have freely consented to this method of dispute resolution. To deny Muslims divorce arbitration while granting it to Jews and Christians is patently discriminatory.

[There is more.  To read the rest, click here.]