Role for Religious Law in Secular Courts?

In a recent speech and BBC interview the Archbishop of Canterbury, Rowan Williams, suggested that it was probably "unavoidable" that aspects of Islamic Sharia law would become a part of the British legal system through a case referral process similar to that which already exists for Britain's Orthodox Jews. Members of the British Orthodox community may seek have civil disputes involving both business and divorce matters referred to a special Jewish body, the Beth Din. Despite this precedent, the Archbishop's remarks have provoked considerable commentary in the British and American press.

In today's New York Times Adam Liptak examines the thorny legal questions raised when the power of secular courts intersects with the world of religious law in controversies involving family matters, such as the determination of child custody and property rights in divorce.  Although, as the Liptak article reports, a number of American courts have already referred both business and domestic disputes to specialized religious tribunals when the civil court confirms that the parties have consented to that method of resolution, such actions generate interesting constitutional questions. For example, as University of Michigan First Amendment scholar Douglas Laycock notes, it is possible that a party may later change his or mind and revoke such consent when the religious tribunal's result is unacceptable. Could a secular court enforce the religious body's conclusion, especially in the face of a party's asserted rejection of his or her own prior religious allegiance?

Among those raising concerns that the resolution of family disputes through recourse to religious priniciples could have adverse consequences for women and children, consequences that should be considered constitutionally unacceptable, is Washington & Lee law professor Robin Wilson. Professor Wilson's forthcoming article, The Overlooked Costs of Religious Deference, presents the following argument as summarized on SSRN:   

Citing the Qur'an, a German divorce court judge this year denied a fast-track divorce to a Muslim woman who had been the victim of domestic violence and death threats from her husband. The judge rejected her application because the husband's exercise of his “right to castigate does not fulfill the hardship criteria” for an expedited divorce. The decision, which sparked a firestorm of controversy, comes at an important time in the movement to embrace pluralistic understandings of family relationships. Scholars and policymakers around the world are advancing various schemes for sharing state control over domestic disputes with religious groups - ranging from proposals to share jurisdiction over family disputes with religious bodies to enforcing religious understandings, like any other prenuptial agreement.

This Article asks how women and children will fare in a system of religious deference. It maintains that the state has an important protective function to play for these traditionally vulnerable groups. Enforcing certain religious understandings of marital relationships will likely undermine a woman's ability to exit the relationship and, consequently, prevent her from policing the conduct in her own relationship and with respect to her children. Policymakers should proceed cautiously with any proposal to hand over authority for marital disputes since family violence occurs in religious communities, as it does throughout society, but is tolerated by some religious leaders and adherents. Drawing on our experience with faith-based exemptions to the duty to provide medical care for children, this Article concludes that the costs of giving greater deference to religious understandings of family relationships must seriously be considered before we are willing to rob women and children of the state's protections.

For an interesting historical perspective on the interaction between religious and secular legal regimes in the United States, William & Mary law professor Nathan Oman examines how Mormon courts exercised jurisdiction over civil disputes in parts of nineteenth century America in his paper, Preaching to the Court House and Judging in the Temple.  The paper's abstract states:

A number of American religious denominations - Quakers, Baptists, Mormons, and others - have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century's end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession's claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons' rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the "public law" side of this story, showing how the federal government's effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.   

JFB