Careers in Canon Law?

A thousand years ago, Catholic canon-law courts had an active docket and an extensive jurisdiction that covered contracts, property, torts, and much else. Over centuries, in a process Harold Berman famously described in Law and Revolution, the docket dwindled and the jurisdiction contracted. As a result of secularization, church courts lost most of their jurisdiction and importance  in Catholic life. Nowadays, canon-law courts  are reserved principally for marriage annulments.

According to an AP story this week, though, things may be starting to change, at least in the United States. The AP reports on  a significant recent rise in litigation before church courts. Some litigation involves  priests accused of sex abuse, but much concerns everyday matters like parish closings, use of church property, even complaints about non-liturgical music. More and more, it seems, Catholics see church courts as the proper place to air their grievances and seek redress. In fact,  something of a new practice area seems to be developing. The AP story describes the practice of attorney Michael Ritty from upstate New York, who employs three lawyers in his canon law firm.  A small practice, to be sure, but indications are the field is growing. “‘Most of us, when we were training, were preparing for marriage tribunals, marriage annulments,’ said Monsignor Patrick Lagges of Chicago, a canon lawyer for three decades….  ‘Now there’s such a broad range of things. It’s a much broader field.'”

Slate on Civil Unions Among Opposite-Sex Couples

Slate has an interesting piece this week about Illinois’s new law on civil unions, enacted six months ago. Although Illinois designed civil unions principally to give same-sex couples the benefits of marriage without the name, the law also makes civil unions available to opposite-sex couples. And, in fact, about 7.5% of civil-union licences have gone to opposite-sex couples — though the total number of civil-union licenses itself is very small, only about 2000. Slate interviews some of the opposite-sex civilly-united couples and finds their reasons for selecting civil unions mostly have to do with objections to the traditionalism of marriage, including its religious connotations, and solidarity with gays and lesbians. Slate thinks the interest opposite-sex couples have shown in civil unions may further the deconstruction of marriage in America. Given how low the numbers are, I’m not sure. Anyway, worth reading. (H/T: Mirror of Justice).

Westreich on Annulment in Jewish Marriage Law

Avishalom Westreich (Ramat Gan) has posted The “Gatekeepers” of Jewish Marriage Law: Marriage Annulment as a Test Case, on SSRN. The abstract follows.

From early classic commentators to modern Jewish Law scholars, the character of marriage annulment in Jewish Law has been much debated. These debates revolve around the appropriate reading of Talmudic sources. Nevertheless, textual analysis of the main passages reveals support for almost all the competing opinions.

Normally, as the paper argues, Jewish Law is characterized by a pluralist discourse and, despite acrimonious controversies, the merits of competitive arguments are recognized, receiving some legitimacy – at least on a post factum level. Nevertheless, Jewish family law, and especially the case of marriage annulment, is characterized quite differently. In the last few decades some proposals of marriage annulment were raised as a solution to the problem of chained wives (agunot). On the basis of the Read more

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

Nichols on Marriage

Joel Nichols (University of St. Thomas – Minnesota) has posted Misunderstanding Marriage and Missing Religion on SSRN. The abstract follows.

This Essay is part of a Symposium that considered the virtues and vices of “E-marriage.” That idea, proposed by Professors Adam Candeub and Mae Kuykendall, seeks to “modernize marriage” by using a variation on older notions of proxy marriage, where a couple need not be physically present in order to be “married” in a state. In essence, the Symposium challenged the assumption of presence in a state dictating decision-making about who may marry and under what procedures (infused with an element, at times, of using electronic means to be “present” in another jurisdiction).

Candeub and Kuykendall’s article and, even more so, the Symposium are notable both for their assumption of state control and for their lack of discussion about religion. This Essay offers correctives to both matters. Read more

Religious Law and Yesterday’s Election in NY-9

As everyone who follows American politics knows, a special election was held yesterday in New York’s Ninth Congressional District – a stone’s throw from CLR headquarters here at St. John’s – to replace former representative Anthony Weiner (D), who resigned because of a sexting scandal.  For the first time in nearly 90 years, in a district where registered Democrats have a 3-1 advantage, the district went Republican.  In fact, it wasn’t all that close.  Bob Turner, the Republican candidate, beat his Democratic opponent, State Assemblyman David Weprin, by 8 percentage points.

Numerous factors contributed to Turner’s upset victory: the bad economy, voters’ disapproval of President Obama’s job performance, in particular, his perceived toughness on Israel, a serious issue in a district with a large Jewish electorate.  But, over at Mirror of Justice, Robert George notes that religion also helped turn the race, in a way that will interest CLR readers:

In the run up to the election, a group of Orthodox rabbis, most from Brooklyn, but including others, notably Rabbi Shmuel Kamenetsky and Rabbi Simcha Bunim Cohen, two nationally prominent Orthodox Jewish authorities, published a letter stating that “it is forbidden to fund, support, or vote for David Weprin.”  The reason?  As a member of the New York state legislature, Weprin, despite his Orthodox Jewish beliefs, voted to redefine marriage to include same-sex partnerships.  This, the Read more