Somehow Everyone Missed It

Here is a very odd-looking book from Yale University Press: Polygamy: An Early American History, by historian Sarah Pearsall (Cambridge). Based on the blurb and the reviews, the book argues that polygamy was much closer to the center of early American culture than we understand today–a “shocking” discovery, in the words of one of the reviewers. I haven’t read the book, but I have to say I’m skeptical, both because I’m skeptical generally when historians claim to have discovered a salient feature of the long-ago past that no one has noticed, and also because the thesis fits so well with the current policy goals of so many academics. Wouldn’t it be great to learn that our ancestors approved of polygamy all along, and thought of it as one marital option among many?

To learn that polygamy historically existed in America would not be “shocking.” It exists today. But, as today, it seems to have been very much a fringe phenomenon. There’s a reason polygamous groups, like 19th Century Mormons, had to move repeatedly and finally settle in the frontier. Americans at the time precisely did not see polygamy as one option among many. Anyhow, readers can judge for themselves. Here’s the description of the book from the Yale website:

A groundbreaking examination of polygamy showing that monogamy was not the only form marriage took in early America.

Today we tend to think of polygamy as an unnatural marital arrangement characteristic of fringe sects or uncivilized peoples. Historian Sarah Pearsall shows us that polygamy’s surprising history encompasses numerous colonies, indigenous communities, and segments of the American nation. Polygamy—as well as the fight against it—illuminates many touchstones of American history: the Pueblo Revolt and other uprisings against the Spanish; Catholic missions in New France; New England settlements and King Philip’s War; the entrenchment of African slavery in the Chesapeake; the Atlantic Enlightenment; the American Revolution; missions and settlement in the West; and the rise of Mormonism.
 
Pearsall expertly opens up broader questions about monogamy’s emergence as the only marital option, tracing the impact of colonial events on property, theology, feminism, imperialism, and the regulation of sexuality. She shows that heterosexual monogamy was never the only model of marriage in North America.

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Eekelaar, “Family Rights and Religion”

In May, Routledge will release “Family Rights and Religion,” by John Eekelaar (Pembroke College, Oxford University).  The publisher’s description follows:

The interaction between individual rights, which are often seen in secular terms, and religion is becoming an important and complex topic not only for academic study logo-rt-cbut for practical policy. This volume collects a range of writings from journals, edited collections and individual books which deal with different aspects of the interaction within the context of family life, and which appear with their original pagination. These studies have been selected because they throw a sharp light on central elements of the role of religion in determining the structure of the rights of family members in relation to one another, both from an historical and contemporary perspective. While many of the writings are focused on US and European systems, selected writings covering other systems illustrate the universal nature of the topic. The studies are accompanied by a reflective commentary from the editor which sets the writings in a broad context of social, constitutional and philosophical thought, with the aim of stimulating critical thought and discussion.

“Gender and Justice in Family Law Disputes” (Bano, ed.)

In May, the Brandeis University Press will release “Gender and Justice in Family Law Disputes: Women, Mediation, and Religious Arbitration,” edited by Samia Bano (University of London).  The publisher’s description follows:

Recently, new methods of dispute resolution in matters of family law—such as arbitration, mediation, and conciliation—have created new forms of legal culture that 9781512600353affect minority communities throughout the world. There are now multiple ways of obtaining restitution through nontraditional alternative dispute resolution (ADR) mechanisms. For some, the emergence of ADRs can be understood as part of a broader liberal response to the challenges presented by the settlement of migrant communities in Western liberal democracies. Questions of rights are framed as “multicultural challenges” that give rise to important issues relating to power, authority, agency, and choice. Underpinning these debates are questions about the doctrine and practice of secularism, citizenship, belonging, and identity.

Gender and Justice in Family Law Disputes offers insights into how women’s autonomy and personal decision-making capabilities are expressed via multiple formal and nonformal dispute-resolution mechanisms, and as part of their social and legal lived realities. It analyzes the specific ways in which both mediation and religious arbitration take shape in contemporary and comparative family law across jurisdictions. Demarcating lines between contemporary family mediation and new forms of religious arbitration, Bano illuminates the complexities of these processes across multiple national contexts.

 

“Changing God’s Law: The Dynamics of Middle Eastern Family Law” (Yassari, ed.)

In June, Routledge will release “Changing God’s Law: The Dynamics of Middle Eastern Family Law” edited by Nadjma Yassari (Max Planck Institute for Comparative and International Private Law, Hamburg). The publisher’s description follows:

This volume identifies and elaborates on the significance and functions of routlogothe various actors involved in the development of family law in the Middle East. Besides the importance of family law regulations for each individual, family law has become the battleground of political and social contestation. Divided into four parts, the collection presents a general overview and analysis of the development of family law in the region and provides insights into the broader context of family law reform, before offering examples of legal development realised by codification drawn from a selection of Gulf states, Iran, and Egypt. It then goes on to present a thorough analysis of the role of the judiciary in the process of lawmaking, before discussing ways the parties themselves may have shaped and do shape the law. Including contributions from leading authors of Middle Eastern law, this timely volume brings together many isolated aspects of legal development and offers a comprehensive picture on this topical subject. It will be of interest to scholars and academics of family law and religion.

Goldfeder, “Legalizing Plural Marriage”

In November, Brandeis University Press will release “Legalizing Plural Marriage: The Next Frontier in Family Law” by Mark Goldfeder (Emory University School of Law). The publisher’s description follows:

Polygamous marriages are currently recognized in nearly fifty countries worldwide. Although polygamy is technically illegal in the United States, it is practiced by members of some religious communities and a growing number of other “poly” groups. In the radically changing and increasingly multicultural world in which we live, the time has come to define polygamous marriage and address its legal feasibilities.

Although Mark Goldfeder does not argue the right or wrong of plural marriage, he maintains that polygamy is the next step—after same-sex marriage—in the development of U.S. family law. Providing a road map to show how such legalization could be handled, he explores the legislative and administrative arguments which demonstrate that plural marriage is not as farfetched—or as far off—as we might think. Goldfeder argues not only that polygamy is in keeping with the legislative values and freedoms of the United States, but also that it would not be difficult to manage or administrate within our current legal system. His legal analysis is enriched throughout with examples of plural marriage in diverse cultural and historical contexts.

Tackling the issue of polygamy in the United States from a legal perspective, this book will engage anyone interested in constitutional law, family law, or criminal law, along with sociologists and those who study gender and culture in modern times.

Boe, “Family Law in Contemporary Iran: Women’s Rights Activism and Shari’a”

Last month, I.B.Tauris released “Family Law in Contemporary Iran: Women’s Rights Activism and Shari’a” by Marianne Boe (University of Bergen). The publisher’s description follows:

Passed into law over a decade before the Revolution, the Family Protection Law quickly drew the ire of the conservative clergy and the Ayatollah Khomeini in 1979. In fact, it was one of the first laws to be rescinded following the revolution. The law was hardly a surprising target, however, since women’s status in Iran was then – and continues now to be – a central concern of Iranian political leaders, media commentators, and international observers alike. Taking up the issue of women’s status in a modern context, Marianne Boe offers a nuanced view of how women’s rights activists assert their rights within an Islamic context by weaving together religious and historical texts and narratives. Through her substantial fieldwork and novel analysis, Boe undermines both the traditional view of ‘Islamic Feminism’ as monolithic and clears a path to a new understanding of the role of women’s rights activists in shaping and synthesizing debates on the shari’a, women’s rights and family law. As such, this book is essential for anyone studying family law and the role of women in contemporary Iran.

More on That Jewish Divorce Case in New Jersey

Photo from Beth Din of America

A couple of weeks ago, I posted about the FBI’s arrest of two rabbis who allegedly orchestrated the kidnapping and torture of dozens of men in New Jersey. The rabbis allegedly did this in order to force the men to consent to their wives’ requests for divorce under Jewish law. Under Jewish law, a woman cannot unilaterally divorce her husband; the husband must give permission, or a get. If he refusesthe wife becomes a chained woman, or agunah, who cannot remarry.

The women in these cases were apparently desperate for Jewish divorces and took extreme measures to obtain them. They allegedly paid the rabbis tens of thousands of dollars to convene Jewish law tribunals and issue decrees allowing violence against the recalcitrant husbands. The rabbis then allegedly arranged for thugs to torture the husbands until the husbands granted the gets. This conduct would obviously be criminal under US law and the rabbis will not be able to escape punishment by arguing that their religion authorized what they did.

I expressed doubt in my post that ordering violence against a recalcitrant husband would be consistent with Jewish law. It turns out that I may have spoken too soon. My friend Michael Helfand  at Pepperdine University, an expert in Jewish law and occasional guest here at CLR Forum, explains in the The Forward that “the use of violent sanction in these circumstances has been a feature of Jewish family law for millennia.” Under traditional Jewish law, he writes, if a husband refused to comply with a tribunal’s judgment and give his wife a get,

the rabbinical court could authorize the use of violent force against the husband. While divorces [could not] be executed under duress, it was simply unimaginable that a husband would so cruelly leave his wife trapped in a nonfunctional marriage. Thus, force simply served as a vehicle to free the husband’s inner desire to do the right thing and grant his wife a divorce.

Michael doesn’t advocate this practice, I hasten to add, and he notes that the strong implication of bribery would likely invalidate the religious decrees in the New Jersey cases. In fact, Michael advocates a very American fix for the problem of agunot–a prenuptial agreement. (Michael wrote about the topic here at CLR Forum back in March). The Beth Din of America, a major Jewish law tribunal in the US, has adopted a model prenup “that requires a husband to provide his wife with a daily support payment, typically $150, for each day the two no longer live together and the husband still refuses to grant his wife a religious divorce.”

The prenup is not a panacea. A wealthy husband could make the payments and refuse to give a get, and a wife without such a prenup wouldn’t benefit at all. But the prenup might help some agunot, and wouldn’t require kidnapping one’s husband and torturing him. It’s like they used to tell us in law school: In America, when the going gets tough, the tough contract out.