May 30, 2010
McClain: "Marriage Pluralism in the United States: On Civil and Religious Jurisdiction and the Demands of Equal Citizenship"
Linda McClain (Boston University School of Law) has posted "Marriage Pluralism in the United States: On Civil and Religious Jurisdiction and the Demands of Equal Citizenship" on SSRN. Here is the abstract:
“Legal pluralism” is hot, particularly in family law. As family law and practice in the United States have become global due to the globalization of the family, some argue it is time for U.S. family law to embrace more legal pluralism so that civil government would cede jurisdictional authority over marriage and divorce law to religious communities. They point to forms of pluralism already present in U.S. family law, such as covenant marriage (available in three states) and New York’s get statutes. They suggest the U.S. should learn from how many other nations allocate jurisdiction over marriage and divorce law (for example, systems of personal law, in which religious tribunals have such jurisdiction). In this chapter, I argue that an exercise in comparative law does reveal many different ways of allocating jurisdiction over family law, but does not answer the normative question of whether these are good models for U.S. family law. Challenging the call for a “multi-tiered” marriage, I analyze what form of marriage pluralism in the U.S. is sought and what might be motivating this demand. I examine differing views about whether there should be congruence between religious and civil marriage, illustrating with the controversy over same-sex marriage. I raise a normative concern over tensions between religious doctrines and key commitments, values, and functions of civil family law, illustrating with how state courts in the U.S. now navigate those tensions when asked to enforce terms of religious marriage contracts and other religious law. I am also skeptical as to whether a more pluralistic legal system can adequately protect the equal citizenship of women. Nearly every foreign example that proponents of jurisdictional pluralism in family law offer raises troubling question about how to reconcile sex equality with religious freedom. Feminist scholars highlight the importance of claims of national and constitutional citizenship as a strategy for redressing sex inequality, even as they affirm the value of membership in religious and cultural groups. Finally, I ask what lessons we might learn about legal pluralism from the recent controversy over religious family law arbitration (or “sharia arbitration”) in Ontario.
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