Ann Laquer Estin, Family Law, Pluralism, and Human Rights

• Publication year: 2010

FAMILY LAW, PLURALISM, AND HUMAN RIGHTS

Ann Laquer Estin*

Contemporary human rights law builds on a theoretical foundation laid during the Enlightenment, which emphasized the types of civil and political rights that were at the center of the American and French Revolutions of the late eighteenth century.1 This conception of human rights extended only to

male citizens, who were understood to be the heads of households, and did not address the rights of women or children or the possibility that families could be sites of oppression.2 A more universal vision of human rights expanded through the nineteenth and into the twentieth century, slowly extending to women and children. Traditional laws of domestic relations have gradually

been transformed to match this new understanding.

Family law in the United States and Canada traces its roots to England, where the common law and Christian ecclesiastical law shaped families based on a norm of monogamous marriage, without divorce, in which fathers and husbands wielded authority over the bodies and property of their wives and

children.3 These traditions were adjusted in the New World, where church

courts had no official authority, but the transition to a legal regime in which married women have full legal rights has taken centuries.4 This process was by no means complete when the United Nations (“UN”) adopted the Universal Declaration of Human Rights5 in 1948, or when those principles were incorporated into human rights law in 1966 with the UN Bill of Rights, comprised of the International Covenant on Economic, Social and Cultural

* Aliber Family Chair in Law, University of Iowa College of Law.

1. MICHELINE R. ISHAY, THE HISTORY OF HUMAN RIGHTS FROM ANCIENT TIMES TO THE GLOBALIZATION ERA 64–66 (2d ed. 2008).

2. See SUSAN MOLLER OKIN, WOMEN IN WESTERN POLITICAL THOUGHT 99–105, 197–230 (1979).

3. See WILLIAM BLACKSTONE, THE COMMENTARIES OF SIR WILLIAM BLACKSTONE ON THE LAWS AND CONSTITUTION OF ENGLAND 433–45, 446–57 (2009); HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 21–25 (2d ed. 1988).

4. See NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000); MARY ANN

   MASON, FROM FATHER’S PROPERTY TO CHILDREN’S RIGHTS (1996) (chronicling the development of women’s rights concerning child custody).

5. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10,

   1948) [hereinafter Universal Declaration].

   Rights (“ICESCR”)6 and the International Covenant on Civil and Political Rights (“ICCPR”).7 Those instruments mandated that men and women should have both the right to marry and equal rights in marriage, and addressed the protection of children by requiring that there should be no discrimination based on a child’s birth in or out of wedlock. Seen against the backdrop of American

   family law of the time, these were idealistic, aspirational statements envisioning a reality that had not been achieved.8

   
   

   Despite its roots in ecclesiastical tradition, contemporary family law in the United States and Canada maintains a clear separation between civil and religious authority over families. Secular laws have abandoned some aspects of Christian tradition, such as the prohibition on divorce, and maintained others, notably the prohibition of polygamy. These legal systems generally provide for

   separation of church and state,9 and from the perspective of the state any

   obligations of religious law are purely voluntary. Family law creates a space for couples to contract a civil marriage in a religious ceremony, but the state defines who may marry and maintains a monopoly over the dissolution of civil marriage.10

   
   

   Until recent years, authorities in the United States gave little serious consideration to the marriage and family traditions of other religious groups. In 1879, the U.S. Supreme Court had harsh words for the religiously based polygamy of Mormons in the Utah Territory, linking the practice to “despotism” and racializing polygamy as “a feature of the life of Asiatic and of

   
   

6. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].

7. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter

   ICCPR]. The ICCPR was ratified by the United States in 1992.

8. Constitutional decisions addressing these equality issues in the United States begin with Loving v. Virginia, 388 U.S. 1 (1967), Levy v. Louisiana, 391 U.S. 68 (1968), and Reed v. Reed, 404 U.S. 71 (1971). See also Susan Moller Okin, Feminism, Women’s Human Rights, and Cultural Differences, 13 HYPATIA 32, 33 (1998).

9. In the United States, religious freedom is protected by the First Amendment to the Constitution, which

   includes a prohibition on establishment of religion. Section 2(a) of the Canadian Charter of Rights and Freedoms guarantees freedom of conscience and religion, but these rights also have a much longer history. See Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.) [hereinafter Canadian Charter], available at http://lois.justice.gc.ca/eng/ charter; Beverly McLachlin, Freedom of Religion and the Rule of Law: A Canadian Perspective, in RECOGNIZING RELIGION IN A SECULAR SOCIETY: ESSAYS IN PLURALISM, RELIGION, AND PUBLIC POLICY 12,

   28–33 (Douglas Farrow ed., 2004).

10. See generally Ann Laquer Estin, Unofficial Family Law, 94 IOWA L. REV. 449 (2009) (discussing the interplay between secular and religious law in the context of marriage dissolutions).

    African people.”11 Courts today accommodate cultural and religious diversity more generously, but always within a larger framework of law requiring nondiscrimination, freedom of conscience, gender equality, and protections for dependent or vulnerable family members. In this context, although the unofficial family law of customary and religious authorities has important consequences for individuals and families, those authorities have not been able

    to enlist the coercive machinery of the state to enforce their orders.12 This type

    of pluralism, characteristic of the United States and Canada, poses significantly different questions than the pluralism of nations in which customary or religious law is backed by the authority of the state.

    
    

    Part I of this Essay surveys the key human rights protections relevant to family law, including the right to culture and religion, marriage rights, and the rights of women and children in families. Part II considers the tension between religiously specific understandings of marriage and family and broad conceptions of human rights, focusing on two types of challenges. First, human rights law requires governments to accommodate the family practices of distinct cultural and religious groups, but governments must also protect the individual rights of family members from infringement by religious groups exercising state-backed authority. This would be difficult to accomplish in the United States and Canada, where state supervision of religious tribunals would violate constitutional norms of religious freedom. A second difficulty, typical of circumstances in which customary or religious leaders exercise official authority over group members, is that human rights norms also require governments to define the limits of group authority and the boundaries of group membership. For the groups themselves, these boundary questions are strongly shaped by religious and family law. But when boundaries are policed by the state, membership issues also implicate human rights norms and explicit pluralism raises difficult questions concerning the rights of citizenship. Moreover, to the extent that pluralism breaks a nation into separate bounded groups, subject to different legal rights and obligations, it weakens the bonds between communities and the sense of belonging to the broader society.

    
    

11. Reynolds v. United States, 98 U.S. 145, 164 (1879); cf. Cleveland v. United States. 329 U.S. 14, 26 (1946) (Murphy, J., dissenting) (arguing that polygyny, “like other forms of marriage, is basically a cultural institution rooted deeply in the religious beliefs and social mores of those societies in which it appears”). In the

    U.K. context, see also Hyde v. Hyde and Woodmansee (1866) 1 L.R.P. & D. 130 (Eng.).

12. Proposals to integrate civil and religious law in the setting of divorce have been controversial and largely unsuccessful. See Estin, supra note 10, at 467–70.

    1. HUMAN RIGHTS AND FAMILY LAW

       
       

       The Universal Declaration embraces the proposition that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”13 This principle is repeated in the ICESCR and the ICCPR,14 and recognized in regional instruments such as the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”)15 and the 1981 African Charter on Human and People’s Rights.16 Broad international consensus on the importance of “the family” elides wide differences within and between societies on the shape and meaning of family life.17 Moreover, it masks the possibility that protection for family life will pose other human rights dilemmas, particularly for women and children who have special vulnerabilities in family settings.18

       
       

       1. Rights to Culture and Religion

          
          

          Two provisions in the Universal Declaration of Human Rights frame the discussion of religious and cultural pluralism. The nondiscrimination principle in Article 2 provides that the rights and freedoms of the declaration apply to everyone, “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or

          other status.”19 Article 18 articulates a religious freedom principle, extending

          freedom of thought, conscience, and religion to everyone, specifically including the freedom to change religion or belief.20 This vision of religious freedom includes an individual’s right “either alone or in community with others...