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.
This Chapter argues that such efforts are well-intentioned but naïve. Religious communities are not immune from family violence, and religious norms place women at significant financial and custodial disadvantages. In many instances, there are striking breaks between civil law norms and the outcomes demanded by religious understandings in places where religious arbitration is occurring. The experiences of women and children demonstrate that removing state protections from the family is fraught with peril. In some systems of religious deference, the cost of exiting a marriage, even an abusive one, for women is unconscionable – leading to a substantial risk of poverty and sometimes the loss of child custody after divorce. Some religious leaders tolerate family violence, further frustrating a woman’s ability to exit an abusive marriage. The foreseeable inequities to women and children in systems of religious deference cannot be justified on grounds that a woman voluntarily chooses to participate. Unlike prenuptial agreements, which must be in writing and are policed for duress and unconscionability, existing systems of religious deference offer no such safeguards. This Chapter concludes that policymakers should give serious consideration to the costs of giving deference to religious understandings of family relationships before ceding authority for family disputes to religious bodies.