Paul Horwitz (University of Alabama School of Law) has posted Rethinking the Law, Not Abandoning it: A Comment on ‘Overlapping Jurisdictions’. The abstract follows.
This short paper responds to a symposium article published by John Witte and Joel Nichols entitled “Who Governs the Family?: Marriage as a New Test Case of Overlapping Jurisdictions,” 4 Faulkner L. Rev. 321 (2013). Much of the response was motivated by a statement in an earlier draft of that paper suggesting that advocates of the use of shari’a in marriage cases “have given up on the state” and “want to become a law unto themselves.” I question that statement, and also take the occasion to discuss the legal status of anti-shari’a laws themselves.
My paper makes two basic points. First, although I am generally skeptical that equality is a sufficiently clean and clear principle to serve as the lodestar for all Religion Clause cases, I do believe there are cases where equality does a good deal of useful work. One such area is the legislative and judicial dispute over laws banning the judicial use of shari’a in interpreting marriage contracts. The Tenth Circuit’s decision in Awad v. Ziriax, in which it concluded that such a law violated the antidiscrimination principle offered in Larson v. Valente, shows that equality can be a powerful tool in such cases. It also sheds light on two points that have not been made much in law and religion scholarship: that Larson’s antidiscrimination principle can serve valuable information-forcing purposes, and that this principle can be profitably understood as a matter of political economy.
Second, I argue that although there are some grounds for Witte’s description of shari’a advocates as having given up on the state, that is a disturbing way to think of the issue, and not a necessary one. We need not think of religious arbitration panels and other mechanisms of religious law as an utter abandonment of “law” or “the state.” Rather, we can understand them as a challenge to what we mean by those terms. Religious arbitration of choice-of-law arrangements, and religious institutional autonomy arguments more generally, invite us to adopt a different view of what constitutes “the law” and, perhaps, a more skeptical view of the scope and dominance of “the state.”