May 17, 2012 - LAW AND RELIGION FORUM

Lately, law and religion scholarship has begun to address the phenomenon of private religious arbitration. (Mike Helfand, who is blogging with us this month, is doing important work in the area; check it out). Although the phenomenon transcends religious boundaries, most attention goes to the new Islamic law tribunals that have appeared in the West. Many Western Muslims avoid civil courts and go instead to fiqh tribunals to handle marital and family disputes. These tribunals raise important questions, both from the perspective of civil law — should civil courts enforce the decisions of religious tribunals? — and from the perspective of religious law — to what extent do traditional fiqh rules regarding marriage apply in a contemporary non-Muslim society?

Julie Macfarlane (Windsor) has written an interesting-looking new book, Islamic Divorce in North America (Oxford 2012) that sheds light on some of these issues. The book is a qualitative sociological study of Islamic marriage and divorce in the United States and Canada. The publisher’s description follows:

Policy-makers and the public are increasingly attentive to the role of shari’a in the everyday lives of Western Muslims, with negative associations and public fears growing among their non-Muslim neighbors in the United States and Canada. The most common way North American Muslims relate to shari’a is in their observance of Muslim marriage and divorce rituals; recourse to traditional Islamic marriage and, to a lesser extent, divorce is widespread. Julie Macfarlane has conducted hundreds of interviews with Muslim couples, as well as with religious and community leaders and family conflict professionals. Her book describes how Muslim marriage and divorce processes are used in North America, and what they mean to those who embrace them as a part of their religious and cultural identity. The picture that emerges is of an idiosyncratic private ordering system that reflects a wide range of attitudes towards contemporary family values and changes in gender roles. Some women describe pervasive assumptions about restrictions on their role in the family system, as well as pressure to accept these values and to stay married. Others of both genders describe the gradual modernization of Islamic family traditions – and the subsequent emergence of a Western shari’a–but a continuing commitment to the rituals of Muslim marriage and divorce in their private lives. Readers will be challenged to consider how the secular state should respond in order to find a balance between state commitment to universal norms and formal equality, and the protection of religious freedom expressed in private religious and cultural practices.

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted The Priority of God (A Theory of Religious Liberty). The abstract follows.

Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God’s actual commands, as against state power, and to disable state power to proscribe — or prescribe — religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth (or not) and whether society and state embrace the idea of religious tolerance (or not). It then argues that America’s Constitution’s religion clauses, in their original conception, are predicated in a belief in the possibility of religious truth and the imperative of religious tolerance so that the state does not interfere with private individuals’ and groups’ pursuit of truth. This perspective illuminates many of the issues that have plagued interpretation of the First Amendment religion clauses.