Holmes, “The Church of England and Divorce in the Twentieth Century”

In October, Routledge will release The Church of England and Divorce in the Twentieth Century: Legalism and Grace by Ann Sumner Holmes (Louisiana State University). The publisher’s description follows:The Church of England and Divorce in the Twentieth Century

Attitudes towards divorce have changed considerably over the past two centuries. As society has moved away from a Biblical definition of marriage as an indissoluble union, to that of an individual and personal relationship, secular laws have evolved as well. Using unpublished sources and previously inaccessible private collections, Holmes explores the significant role the Church of England has played in these changes, as well as the impact this has had on ecclesiastical policies. This timely study will be relevant to ongoing debates about the meaning and nature of marriage, including the theological doctrines and ecclesiastical policies underlying current debates on same-sex marriage.


Reynolds, “How Marriage Became One of the Sacraments”

In February, Cambridge University Press will release “How Marriage Became One of the Sacraments: The Sacramental Theology of Marriage from its Medieval Origins to the Council of Trent” by Philiip Reynolds (Emory University). The publisher’s description follows:

Among the contributions of the medieval church to western culture was the idea that marriage was one of the seven sacraments, which defined the role of married folk in the church. Although it had ancient roots, this new way of regarding marriage raised many problems, to which scholastic theologians applied all their ingenuity. By the late Middle Ages, the doctrine was fully established in Christian thought and practice but not yet as dogma. In the sixteenth century, with the entire Catholic teaching on marriage and celibacy and its associated law and jurisdiction under attack by the Protestant reformers, the Council of Trent defined the doctrine as a dogma of faith for the first time but made major changes to it. Rather than focusing on a particular aspect of intellectual and institutional developments, this book examines them in depth and in detail from their ancient precedents to the Council of Trent

Huleatt on Obergefell

John Huleatt, an alumnus of St. John’s Law School and General Counsel for the Bruderhof Community, a Christian group with roots in the Anabaptist tradition, has posted an interesting reflection on the Obergefell decision and the implications for religious liberty. Here’s a sample:

Accordingly, the state exceeds its legitimate authority when it lends its authoritarian power to either side in this debate. Protecting gays from discrimination in nonreligious matters is an appropriate concern for government and believers alike. But if the government requires believers to act in violation of their conscience in the name of so-called anti-discrimination, it is going too far. The United States, more than most other countries, has a long history of successfully accommodating competing rights. For this to continue, the state and proponents of gay marriage need to understand that no compromise for believers is possible where conscience is at stake. Thus free exercise of religion must be protected just as much as other civil rights. Religious dissent does not lose protection merely by being labeled discrimination. If the American public and the executive, legislative, and judicial branches of our government fail to recognize this, many people who are (in Justice Kennedy’s words) “reasonable and sincere” will have no choice but to resort to civil disobedience.

You can read Huleatt’s essay here.

Serajuddin, “Cases on Muslim Law of India, Pakistan, and Bangladesh”

In September, Oxford University Press released “Cases on Muslim Law of India, Pakistan, and Bangladesh,” by Alamgir Muhammad Serajuddin (University of Chittagong, Bangladesh).   The publisher’s description follows:

Muslim law is an integral part of the South Asian legal system, and case law plays a major role in its interpretation, application, and development. Through a selection of principal judicial decisions and significant fact situations from pre- and post-independent India, Pakistan, and Bangladesh, this volume provides an easy access to the basic principles and rules of Muslim law, and shows how case law acts as a social barometer and an instrument of change.

The cases discussed cover such diverse areas as sources and interpretation of law, institution of marriage, polygamous marriages, dower, restitution of conjugal rights, talaq, khula, irreconcilable breakdown of marriage, legitimacy, guardianship, and maintenance of wives and divorced wives. Among the important legislations, it covers Dissolution of Muslim Marriages Act 1939, Muslim Family Laws Ordinance 1961, and Muslim Women Act 1986.

The book also shows how religion-based rules of personal law have been interpreted by secular courts during certain epochs in history and how the trend of interpretation has changed over the last 150 years.

In the mail: Witte’s “Western Case for Monogamy Over Polygamy”

I was pleased to receive Professor John Witte’s new volume, released earlier this year, The Western Case for Monogamy Over PolygamyWitte, Monogamy and Polygamy, in which, with at least half an eye cocked at the coming legal contests over polygamous marriage, John explores the following questions:

What is the Western tradition’s case for monogamy over polygamy, and is that case still convincing in a post-modern and globalized world? Are there sufficiently compelling reasons to relax Western laws against polygamy, and is this a desirable policy given the global trends away from polygamy and given the social, economic, and psychological conditions that often attend its practice? Or, are there sufficiently compelling reasons, reconstructed in part from the tradition, to maintain and even strengthen these anti-polygamy measures, in part as an effort to hasten the global demise of this practice?

I’ve only had a chance to glance at the book but from that quick scan, it appears that the primary justifications advanced in the book as a historical matter for monogamy over polygamy relate to “joint parental investment in children” and ensuring “that men and women are treated with equal dignity and respect within the domestic sphere,” the latter logic of which, the book claims, “applies to dyadic same-sex couples, who have gained increasing rights in the West in recent years, including the right to marry and to parent in some places.”

The book is immensely and richly detailed and comprehensive, with chapters including “From Polygamy to Monogamy in Judaism,” “The Case for Monogamy Over Polygamy in the Church Fathers,” “Polygamy in the Laws of State and Church in the First Millennium,” “Polygamous Experiments in Early Protestantism,” and “The Liberal Enlightenment Case Against Polygamy.”

“The Polygamy Question” (eds. Bennion and Joffe)

In November, the Utah State University Press will release “The Polygamy Question,” edited by Janet Bennion (Lyndon State College) and Lisa Fishbayn Joffe (Brandeis University).  The publisher’s description follows:

The practice of polygamy occupies a unique place in North American history and has had a profound effect on its legal and social development. The Polygamy Question explores the ways in which indigenous and immigrant polygamy have shaped the lives of individuals, communities, and the broader societies that have engaged with it. The book also considers how polygamy challenges our traditional notions of gender and marriage and how it might be effectively regulated to comport with contemporary notions of justice.

The contributors to this volume—scholars of law, anthropology, sociology, political science, economics, and religious studies—disentangle diverse forms of polygamy and polyamory practiced among a range of religious and national backgrounds including Mormon and Muslim. They chart the harms and benefits these models have on practicing women, children, and men, whether they are independent families or members of coherent religious groups. Contributors also address the complexities of evaluating this form of marriage and the ethical and legal issues surrounding regulation of the practice, including the pros and cons of legalization.

Plural marriage is the next frontier of North American marriage law and possibly the next civil rights battlefield. Students and scholars interested in polygamy, marriage, and family will find much of interest in The Polygamy Question.

Same-Sex Marriage and Our New Religious Politics


Photo from Wikimedia

In the last week, two interesting polls have appeared, one from the Associated Press and the other from the Washington Post, on Americans’ reactions to the Supreme Court’s June ruling in the same-sex marriage case, Obergefell v. Hodges. Taken together, the polls reveal that America is more divided on the question than first appeared. And the polls reflect an unfortunate, new religious dimension in American politics.

Notwithstanding the widespread acclaim for the decision in the days following Obergefell, it turns out that many Americans do not favor making same-sex marriage a constitutional right. In the AP poll, only 39% said they approved of the Court’s ruling, while 41% said they disapproved. In the Washington Post poll, a bare majority, 52%, said they approved the Court’s decision, while 44% disapproved. These results are much closer than one would have expected, given the immediate media reaction to the ruling.

Now, the fact that many Americans disapprove of the Court’s decision doesn’t mean the decision is wrong. Constitutional law doesn’t turn on opinion polls. (As it happens, I think the Court’s opinion is wrong as a constitutional matter, for reasons I explain here). And one must be careful about reading too much into polls, especially polls that follow an unusual recent event. In time, public opinion may settle in favor of the Court’s decision, especially given the fact that younger Americans apparently support same-sex marriage in significant numbers. Besides, people could disapprove of the Court’s decision for reasons that do not directly relate to the merits. Americans are generally in a bad mood about the state of our country these days, and the polls may simply reflect that dissatisfaction.

All that said, these polls seem significant to me, for three reasons. First, they demonstrate that opposition to the Court’s decision is not a fringe phenomenon. Forty-four percent of the country is not an insignificant group. Dissenters may be reticent about expressing their opinion publicly—or, indeed, to pollsters, which suggests the percentage of opponents may be even higher—but they are not a trivial proportion of the population. America is apparently still divided on the question of same-sex marriage, and this division will doubtless make itself apparent in our politics. More on this below.

Second, the results hint that some people who oppose the Court’s decision may do so out of concern for religious freedom. In the AP poll, for example, 56% said that religious liberty should take precedence over gay rights, the implication being that people anticipate a conflict between the two. They should. At oral argument in Obergefell, Solicitor General Donald Verrilli himself acknowledged the potential for conflict, on questions like tax exemptions for religiously-affiliated institutions that oppose same-sex marriage.

Finally, there is an unmistakable partisan divide. In the AP poll, a large majority of Democrats gave priority to gay rights, while a large majority of Republicans said religious freedom is more important. The extent of the divide is truly startling. “By a 64-32 margin, most Democrats said it’s more important to protect gay rights than religious liberties when the two are in conflict,” the AP reports. “Republicans said the opposite, by 82-17.”

This polarization is worrisome. Up till now, America has been spared the bitterness of religious politics. Unlike some countries in Europe, we have not had clerical and anti-clerical parties. True, particular religious groups have gravitated toward one or another political party. In New England, for example, Irish Catholics were historically Democrats and mainline Protestants Republicans, a conflict memorialized in films like John Ford’s The Last Hurrah.

But we have never had secular and religious parties as such. Both parties saw religion, in general, as a good thing, and religious liberty as a fundamental American value. Tocqueville noticed this and found it refreshing. “In the United States,” he observed, “if a politician attacks a sect, this may not prevent the partisans of that very sect from supporting him; but if he attacks all the sects together, everyone abandons him, and he remains alone.”

Perhaps the political consensus on the value of religion is breaking down. More and more, one of our two major political parties is identifying itself as secular, and the other as religious. That’s not to say that all Democrats are secularists and all Republicans religious believers—of course not. Just ask the folks at Secular Right. And people could value religious freedom but believe other interests outweigh it in particular cases. Still, there seems a clear trend: religious freedom is becoming a partisan issue. That’s a very bad thing for America. You might even say it’s un-American. Let’s hope the trend doesn’t continue.

The Same-Sex Marriage Case

For those who are interested, my quick reaction to yesterday’s ruling in Obergefell is in a symposium today at the First Things website. I discuss the Court’s reasoning and the implications for religious liberty. Here’s a snippet:

First, although some commentators predicted that the Court would issue a narrow, pro-gay marriage ruling, the reasoning of Justice Kennedy’s majority opinion is actually quite sweeping, returning the Court to the heady days of substantive due process and unenumerated rights. Forget about textualism and originalism. As Chief Justice Roberts points out in his dissent, even the restraints of “history and tradition,” a limit Justice Harlan once suggested, are effectively shunted aside. A five-justice majority believes that same-sex marriage is a fundamental element of personal liberty, and that makes it a constitutional right.

For constitutional conservatives, this is very disheartening—whatever one’s views on the merits of same-sex marriage as a policy matter. After thirty years and more of trying assiduously to end, or at least limit, substantive due process, the doctrine still carries the day. As Justice Alito writes in his dissent, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of discretion have failed. A lesson that some”—actually, anyone paying attention—“will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means.” Incidentally, today’s ruling demonstrates again how important the 1987 defeat of Robert Bork was, and how much Senate Democrats gained in putting up such a fight against him. It was the defeat of Bork that led to the nomination of Anthony Kennedy.

You can read my analysis, along with the other contributions to the symposium, here.

Witte, “The Western Case for Monogamy Over Polygamy”

In May, Cambridge University Press will release “The Western Case for Monogamy Over Polygamy” by John Witte, Jr. (Emory University). The publisher’s description follows:

For more than 2,500 years, the Western tradition has embraced monogamous marriage as an essential institution for the flourishing of men and women, parents and children, society and the state. At the same time, polygamy has been considered a serious crime that harms wives and children, correlates with sundry other crimes and abuses, and threatens good citizenship and political stability. The West has thus long punished all manner of plural marriages and denounced the polygamous teachings of selected Jews, Muslims, Anabaptists, Mormons, and others. John Witte, Jr. carefully documents the Western case for monogamy over polygamy from antiquity until today. He analyzes the historical claims that polygamy is biblical, natural, and useful alongside modern claims that anti-polygamy laws violate personal and religious freedom. While giving the arguments pro and con a full hearing, Witte concludes that the Western historical case against polygamy remains compelling and urges Western nations to hold the line on monogamy.

Law, Religious Change, and Same-sex Marriage

We often talk about law and religion as though law is dynamic and religion is static. Religious believers are inclined to see their faith in terms of eternal and unchangeable truths. Non-believers have nothing invested in seeing religion in eternal or unchanging terms, but they often lack the interest and sophistication to understand how the mechanisms of religious change actually work. Hence, we get narratives in which law regulates religious believers or in which law accommodates religious believers and the like. Religion is taken as given, and we make deliberate choices about law.

In my own research one of the questions that has interested me is the way in which the law can drive religious change. Religious traditions are in a constant process of self-interpretation and adaptation to the world around them. The law is often an important part of that world and can drive religious change.

In an admirably irenic column in Sunday’s NYT, William Eskridge touches on this issue, highlighting the way in which a number of mainline Protestant religions have reinterpreted their theology to bless same-sex unions, suggesting that religion is not necessarily the implacable foe of LGBT rights. The Supreme Court will hear oral arguments on same-sex marriage on Tuesday, and if, as I think is very likely, the justices find a constitutional right to same-sex marriage, what will be the effect on religious beliefs?

Eskridge uses the example of race, pointing toward the way in which racist theologies were deployed to justify slavery and segregation. He gets some of the historical details wrong, but his basic point is valid. He then draws the analogy to teachings against miscegenation Continue reading

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