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Douglas et al. on the Relationship between Religious and Civil Law Regarding Marriage

Gillian Douglas (Cardiff Law School), Norman Doe (Cardiff Law School), Sophie Gilliat-Ray (Cardiff School of History, Archaeology and Religion), Russell Sandberg (Cardiff Law School), and Asma Kahn (former research associate at Cardiff University) have posted Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts. The abstract follows.—YAH

This is the report of the project, ‘Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts’, funded by the Arts and Humanities Research Council, which explored how religious law functions alongside civil law in the area of marriage and divorce. It examines the workings of three religious courts in detail: a Jewish Beth Din; a matrimonial tribunal of the Roman Catholic Church; and a Muslim “Shariah Council”. It finds that these tribunals provide an important service for their users in enabling them to remarry within their faith, which serves both to enable them to remain within their faith community and to regularize their position with the religious authorities. None of the tribunals sought greater autonomy and all recognized the supremacy of state law.

Posted on by Marc O. DeGirolami

Reid on “The Devil Comes to Kansas”

Professor Charles Reid (U. St. Thomas law) has posted a fun piece, The Devil Comes to Kansas: A Story of Free Love and the Law, which discusses one of the earliest American cases in which various notions of privacy and “freedom of choice” were first raised and which, as Professor Reid says, have become watchwords of modern constitutional law.  The abstract follows.  — MOD

State v. Walker (1887) is an important but hitherto neglected landmark case in the development of the right of privacy. The case involved the “autonomistic” or “free-love” marriage of Edwin C. Walker and Lillian Harman, daughter of Moses Harman, the radical newspaperman.

Edwin and Lillian, who rejected state control over marriage, proclaimed themselves married in the fall of 1887, although they declared that their union was neither permanent or exclusive. Prosecuted for illegal cohabitation because of their refusal to obtain a marriage license, they and their defenders developed a vocabulary that would profoundly influence the future path of American law.

Their supporters in the radical press began to speak of the right of women to control their own bodies, woman’s right to reproductive autonomy, and a right of sexual privacy. Indeed, it was in the midst of this controversy that the expression “freedom of choice” was used, probably for the first time, in its modern meaning by Lillian Harman writing from prison. Read more

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Justifying Rights: The Dual Importance of Freedom and Virtue

Linda C. McClain and James E. Fleming, both of Boston University School of Law, have published Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights.  The paper draws on the works of Dworkin (and other giants in liberal political theory such as Rawls) to critique the “communitarian” or “civic-republican”  perspective of Michael J. Sandel’s bestseller, Justice: What’s the Right Thing to do? (2009).  Professor Sandel rejects values-neutral conceptions of legal justice in socio-moral debates like that concerning the validity of gay marriage—arguments that emphasize individual freedom to act; rather, he argues that only arguments with a full-fledged consciousness of the actual, moral virtues—or lack of them—that such social institutions embody will satisfactorily resolve these cultural conflicts.

In contrast, McClain and Fleming argue that both values-neutral and values-based arguments—arguments for individual freedom of action as well as arguments about the virtue embodied in social institutions like marriage—have and will be instrumental to resolving such questions.  Please see the authors’ abstract after the jump:

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Martyrs’ Mirror: The Paradoxical Road from Persecution to Tolerance

Last month, Adrian Chastain Weimer, assistant professor of history at Providence College, published Martyrs’ Mirror: Persecution and Holiness in Early New England (Oxford).  The book studies seventeenth-century colonial conceptions of martyrdom and religious persecution and the ways in which these conceptions unexpectedly shaped American civil rights landscape, especially in the areas of religious liberty and tolerance.

Weimer explores the power of martyrdom in the religious imagination in the early New England colonies.  The Puritans were subject to a variety of persecutions in England.  In the colonies, the memory of such persecution was fresh, informing the Puritans’ self conception as martyrs; so, as early as 1641, the Massachusetts Body of Liberties already outlawed the practices employed by the English to persecute them like oath ordeals before ecclesiastical courts under threat of torture, imprisonment, and death.  (It was this memory that would eventually develop, for example, into the constitutional prohibition against forcing persons to incriminate themselves.  See R. Carter Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763 (1935) for a full discussion of this development.)

Complicating the picture, however, Professor Weimer adds the fact of religious persecution by Puritans in the colonies.  New England Congregationalists, Separatists, Quakers, Baptists, and Antinomians all suffered for their beliefs in England and also conceived of themselves as martyrs, a perception that only deepened when the Puritans, in turn, targeted them in the New World.  This passing on of persecution from Puritans to other dissenting religionists created a form of competition amongst early Americans to cast themselves in the narrative role of the persecuted martyr.

Weimer argues that, through this narratological competition, these ugly conflicts gave rise to paradoxical notions of religious tolerance.  The coveted narrative of persecuted martyr, which suggested divine favor, actually led to colonists’ looking askance at persecution.  Ultimately, what these diverse groups shared were memories of persecution.  And eventually, these memories and the competition for the role of martyr gave rise to legally enshrined rights of religious freedom that have developed until today.

Please see Oxford University Press’s description of the text after the jump. Read more