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Nichols on Religion and Marriage

Joel A. Nichols (University of St. Thomas School of Law) has posted Religion, Marriage, and Pluralism. The abstract follows.

In November 2010, Oklahoma voters overwhelmingly passed the first “anti-sharia statute” as an amendment to their state constitution. Although federal courts have held the Oklahoma amendment unconstitutional, several other states continue to move toward various bans on sharia law. Such statutes would have the greatest impact in family law.

This article describes tensions faced by members of both minority Muslim and majority Christian religious communities, who view family issues as controlled both by their religious community and by the demands of the civil state. The article outlines four possible future paths for the intersection of religion and the civil state regarding marriage and divorce. Within these four alternatives, it is clear that even if states purport to disallow sharia (or any other religious beliefs) such a pronouncement will not eliminate adherence to sharia among faithful Muslims. It would mean, at most, that sharia would not be enforced by civil courts. At least for some observant Muslims, the effect will be the same as in the United Kingdom or Ontario: Islamic religious arbitrations will continue to exist outside the protection of the civillaw.
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Wilson on Accommodating Religion in Family Law

Robin Fretwell Wilson (Washington and Lee University – School of Law) has posted The Perils of Privatized Marriage. The abstract follows.

Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society, and how to accommodate religion in matters of family law. Efforts to respect religious understandings in family disputes seem at first blush innocuous: they would allow religious groups to define their own norms and celebrate the rich diversity of society. However, the experience of women and children of multiple faiths across the world demonstrates that religious deference extracts an unconscionable price. As the Volume in which this Chapter appears illustrates, such proposals would confer considerable latitude in family matters not only on adherents of Islam, but on Christians, Jews, and members of other faiths.
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Tagari on Human Rights and Personal Systems of Family Law

Hadas Tagari (student at Bar-Ilan University–Faculty of Law) has posted Personal Family Law Systems – A Comparative and International Human Rights Analysis.  The abstract follows.

This article analyzes the structures and substances of personal systems of family law based on religious affiliation within their social, political and historical contexts, explores the varied ways in which they infringe on the human rights of those governed by these systems – gender equality implicated by most – and the way international law and jurisprudence of human rights respond to these challenges. This analysis wishes to suggest that looking at the specific manifestations of personal family law systems in concrete contexts illuminates significant human rights implications which have not hither to received sufficient attention in mainstream human rights discourse, for various legal, cultural and political reasons. The contexts which this article will draw on are personal family law systems in Israel, India, Lebanon and Morocco, which comprise a varied sample of family law structures and legal, cultural, social and political contexts.

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An-Na’im on Religious Norms and Family Law

Abdullahi Ahmed An-Na’im (Emory U. School of Law) has posted Religious Norms and Family Law: Is it Legal or Normative Pluralism? The abstract follows.

The core question for this Symposium issue of the Emory International
Law Review is how to mediate the tension between democratic demands for the application of religious norms and human rights concerns, especially
regarding the rights of women and children. Such demands tend to be more
intensely asserted in family matters, perhaps because of the intimacy of family relations and the central role of the family as a marker of identity and agent of children’s socialization. Tensions among the competing bases of public policy and legislation tend to come in sharper focus in pluralistic societies because of the multiplicity of exclusive claims of religious truth and visions of the public good. While using the topic of Sharia in Nigeria as a primary case study, this Symposium also includes discussions of broader theoretical and globally comparative perspectives on the mediation of competing normative claims.

The mediation of such controversies and tensions will continue to be the
primary function of politics in every society, where disputes are routinely
mediated through compromise and accommodation. That politics of mediation includes the possibility of coercive adjudication before state courts when voluntary compliance fails to work. Indeed, the peace, stability, and well-being of every society depend on its ability to mediate and adjudicate such disputes in a peaceful and orderly manner. The more the proponents of each side in a dispute perceive their position as open to negotiation and compromise, the better the prospects for political stability and social justice. This is unlikely to be the case, however, where people believe their positions to be immutable because they are ordained or mandated by God or, in the case of a customary norm, because they are part of the irreducible core of their culture. Read more

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Wardle on Marriage and Religious Liberty

Lynn Wardle (BYU) has posted Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions, on SSRN. The abstract follows.

The purpose of this paper is to consider how the legal regulation of marriage impacts upon religious liberty, and vice versa, and how to reconcile conflicts between religious liberty and state marriage regulations. It is an area of increasing conflicts in a growing number of nations. Using comparative law, this article presents the range and complexity of state-versus-religion conflicts and of systemic legal approaches concerning the regulation of marriage that exist in the world today, focusing specifically on two issues: the formation/celebration of marriage generally, and the legalization of same-sex marriage. Having shown the scope of the conflicts between religious and political communities regarding the regulation of marriage, this article argues that the body of law known as “conflict of laws” provides a valuable model for the resolution of church-state disputes regarding the regulation of marriage.

This paper focuses on two communities that claim sovereignty over individuals: the State and religion. Conflicts between religions and states concerning their respective regulatory policies may create internal cognitive dissonance for religious communities and for states. Thus, there would seem to be internal harmony incentives to find a solution to avoid disputes. However, these incentives may be offset, neutralized, or overcome if there are communities within the state that wish to harm or reduce the influence of the religious community

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New Translation of Vidyasagar’s “Hindu Widow Marriage”

Brian A. Hatcher (Tufts) has published a new translation of Vidyasagar’s Hindu Widow Marriage (Columbia University Press 2011), a nineteenth-century work arguing for the repeal of Hindu restrictions on widows’ remarriage. The publisher’s description follows.

Before the passage of the Hindu Widow’s Re-marriage Act of 1856, Hindu tradition required a woman to live as a virtual outcast after her husband’s death. Widows were expected to shave their heads, discard their jewelry, live in seclusion, and undergo regular acts of penance. Ishvarchandra Vidyasagar was the first Indian intellectual to successfully argue against these strictures. A Sanskrit scholar and passionate social reformer, Vidyasagar was a leading proponent of widow marriage in colonial India, urging his contemporaries to reject a ban that caused countless women to suffer needlessly.

Vidyasagar’s brilliant strategy paired a rereading of Hindu scripture with an emotional plea on behalf of the widow, resulting in an organic reimagining of Hindu law and custom. Vidyasagar made his case through the two-part publication Hindu Widow Marriage, a tour de force of logic, erudition, and Read more

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Nawi on Family Mediation in Malaysian Muslim Society

Nor Fadzlina Nawi (La Trobe University) has posted Family Mediation in Malaysian Muslim Society: Some Lessons for the Civil Family Law in Malaysia. The abstract follows.

Malaysia’s justice system is exceptional in that it reflects the country’s multi-racial and multi-religious culture. Malaysia has a two-tier legal system, including family law. Family law matters relating to Muslims are administered separately from those of non-Muslims. Muslims are dealt with under the jurisdiction of the Syariah courts, while non-Muslims are dealt with under the jurisdiction of the civil courts. It is significant to note that, since 2002 there has been a mandatory family mediation service also known as Sulh for Muslims but a similar service is yet to be established under the civil legal system for the non-Muslims in Malaysia. The Sulh process is reported to be successful in dealing with the backlog of cases in the Syariah Courts. It is claimed that the benefits of making mediation mandatory generally prevail over the potential harms for families, even when violence is an issue, provided that its design and realizations are carefully thought of. Hence, it could be argued that it is only fair and equitable that an equivalent form of process be made available to non-Muslims in the civil family law system.

Thus, the current paper is not concerned with whether or not mediation should be made mandatory in family disputes, but rather the best way in approaching its application and implementation in the civil legal system Malaysia. Considering that the Islamic family law system has already been progressively establishing a form of mandatory mediation for Muslims in Malaysia, the paper briefly describes and reflects on the development and implementation of the Sulh program and highlights some of the lessons for the civil legal system towards establishing a mandatory family mediation program for non-Muslims in Malaysia.

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Solanki on Religious Family Laws in India

Gopika Solanki (Carelton University, Ottawa) has published Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India (Cambridge 2011). A description follows. — MLM

How do multireligious and multiethnic societies construct accommodative arrangements that can both facilitate cultural diversity and ensure women’s rights? Based on a study of legal adjudication of marriage and divorce across formal and informal arenas in contemporary Mumbai, this book argues that the shared adjudication model in which the state splits its adjudicative authority with religious groups and other societal sources in the regulation of marriage can potentially balance cultural rights and gender equality. In this model the Read more