Joel A. Nichols, Religion, Marriage, and Pluralism

• Publication year: 2010

RELIGION, MARRIAGE, AND PLURALISM

Joel A. Nichols*

INTRODUCTION

On November 2, 2010, Oklahoma citizens overwhelmingly voted to amend their state constitution by adopting the “Save Our State Amendment.”1 According to the amendment, it was needed to prevent state courts from “look[ing] to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.”2 By implication, then, the amendment was needed to save Oklahoma from the allegedly impending threat of imposition of international or Sharia law. Only two days

after seventy percent of the electorate voted in favor of the amendment, Muneer Awad sued to enjoin it from taking effect. He claimed that the amendment violates both the Establishment Clause and the Free Exercise Clause of the U.S. Constitution. The U.S. District Court agreed and issued a preliminary injunction less than four weeks later.3 Notwithstanding, several other states have moved to ban Sharia law4 and some conservative groups have sought to make rejection of Sharia law a litmus test for 2012 Republican presidential candidates.5

* Associate Professor, University of St. Thomas School of Law (Minnesota), and Senior Fellow, Emory

University Center for the Study of Law and Religion. B.A., Abilene Christian University (Texas) (1995); J.D. and M.Div., Emory University (2000). I am grateful to Mitchell Gordon, Colleen Murphy, and participants at a faculty colloquium at the Roger Williams University School of Law for helpful comments on an earlier version of these remarks. I am also grateful to Abdullahi Ahmed An-Na’im, M. Christian Green, and John Witte, Jr. for their instigation of this Symposium, their invitation to participate, and their insights along the way. This Essay draws, in part, upon MARRIAGE AND DIVORCE IN A MULTICULTURAL CONTEXT: MULTI- TIERED MARRIAGE AND THE BOUNDARIES OF CIVIL LAW AND RELIGION (Joel A. Nichols ed., 2012).

1 Awad v. Ziriax, 754 F. Supp. 2d 1298, 1302 (W.D. Okla. 2010).

1. Okla. House Joint Resolution No. 1056 § 1(C) (2d Sess. 2010).

2. The case is now on appeal before the Tenth Circuit. For a discussion of the amendment from a conflict of laws perspective, see John T. Parry, Oklahoma’s Save Our State Amendment and the Conflict of Laws (Lewis & Clark Law Sch., Research Paper No. 2011-21, July 23, 2011), available at http://ssrn.com/abstract= 1893707.

3. See, e.g., Symeon Symeonides, Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey, 59 AM. J. COMP. L. 303, 320–21 (2011).

4. Family Leader, The Marriage Vow: A Declaration of Dependence upon Marriage and Family, available at http://www.politico.com/static/PPM187_marriage.html (calling for “[r]ejection of Sharia Islam and all other anti-woman, anti-human rights forms of totalitarian control”); see also Maggie Haberman, The

   It is unclear what such bans on Sharia law add to the civil law. Could a court use, rely upon, or enforce Sharia law without such a ban? Would reliance upon Sharia law ever be permitted or mandated (by a private choice of law provision by parties, for example)? For that matter, is a clear differentiation between civil law and Sharia law possible? Further, it is unclear what such a ban might realistically accomplish. Some committed Muslims who believe their faith commands application of Sharia law would surely still follow Sharia principles regardless of the validity of an amendment. They might do so according to the dictates of their own conscience, but they will surely still encounter disputes and two religiously observant Muslim parties would almost certainly seek dispute resolution via Sharia principles. This conceivably could mean that the parties desire a Muslim judge or arbitrator, or that the parties desire the decision-maker to apply substantive principles of Sharia to resolve the dispute, or both. Such dispute resolution would occur outside the civil legal system and one could presume that a losing party would appeal to the civil court. Would a civil court adjudicate de novo a claim brought by the losing party or would civil courts instead give some deference to religious tribunals’ decisions? Does the answer turn on whether it was merely a choice of forum (with arbitration chosen rather than a civil lawsuit) or a choice of law?

   
   

   Roughly speaking, Muslims (or any other religious group) might be interested in deciding three categories of internal disputes according to religious law.6 First, there are internal disputes about doctrine and leadership. Such internal decisions are plainly protected by the First Amendment.7 Second, there are commercial or business disputes. Traditionally, freedom of contract principles have allowed religious believers to agree to arbitrate such disputes

   before a religious arbitrator. The arbitrator’s decision is enforceable in court on the same basis as any other arbitral decision.8 Third, there are family law

   
   

   Family Leader Pledge, POLITICO (July 8, 2011), http://www.politico.com/news/stories/0711/58591.html (reporting on U.S. representatives’ endorsement of the pledge).

5. I am grateful to Michael Broyde for this tripartite distinction of disputes, as discussed at a January

   2011 presentation at the Association of American Law Schools Section on Jewish Law meeting in San Francisco, California. This Essay omits discussion of a fourth possible area—decisions made by the criminal law. One could even posit a fifth area, namely decisions about international law. See RAJ BHALA, UNDERSTANDING ISLAMIC LAW (SHARI’A) 1307–83 (2011) (discussing the international law area). These latter two categories pertain much more strongly to the state vis-à-vis individuals, or vis-à-vis other states, and thus this Essay focuses on private dispute resolution rather than public.

6. See JOHN WITTE, JR. & JOEL A. NICHOLS, RELIGION AND THE AMERICAN CONSTITUTIONAL

   EXPERIMENT 241 (3d ed. 2011).

7. See Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L. REV. (forthcoming 2011) (discussing cases focusing especially on commercial

   disputes. This is the most contested area because the civil state seeks to exercise its power over citizens and to enforce norms of equality and nondiscrimination, especially on behalf of weaker parties, historically women and children. At the same time, this is the most personal of all spheres. The family is arguably the foremost arena in which citizens resist the state and are

   free to form their own allegiances.9 Further, a person’s identity as a member of

   his or her religious community is bound up with that community’s norms regarding marriage and divorce. Believers will feel a strong pull to follow the norms of their immediate community rather than overarching state norms if there is a conflict.

   
   

   Academic discussions (and often court decisions) in the United States operate as if there is a one-size-fits-all model of family law and domestic relations.10 This is coupled with the assumption that the civil state has exclusive jurisdiction over domestic relations matters.11 Both of these assumptions are wrong descriptively because the United States is increasingly multicultural and religiously plural, and its positive laws on marriage and divorce are already more plural than is often discussed. Moreover, both

   assumptions deserve to be challenged normatively because they overstate the power and reach of the civil law and because they arguably do not match the goods and goals of liberal democracy, which seeks not only to foster liberty and equality but also to promote and respect religious liberty and decisions of conscience and autonomy.

   
   

   This Essay briefly illustrates the descriptive deficiency in typical discussions about family law, especially relating to religious citizens, and also describes new possible pathways and developments. Because this Symposium is focused on Sharia, Family, and Democracy: Religious Norms and Family

   Law in Pluralistic Democratic States,12 this Essay particularly draws on

   
   

   disputes). There is a burgeoning literature on Islamic banking. See, e.g., MUNAWAR IQBAL & PHILIP MOLYNEUX, THIRTY YEARS OF ISLAMIC BANKING: HISTORY, PERFORMANCE AND PROSPECTS (2005).

8. See F.C. DeCoste, Caesar’s Faith: Limited Government and Freedom of Religion in Bruker v.

   Marcovitz, 32 DALHOUSIE L.J. 153, 175 (2009) (“[O]nly if faith and family are secure from state management and predation is a state a constitutional state.”).

9. See Barbara Stark, Marriage Proposals, From One-Size Fits-All to Postmodern Marriage Law, 89

   CALIF. L. REV. 1479 (2001).

10. See Joel A. Nichols, Multi-Tiered Marriage: Reconsidering the Boundaries of Civil Law and Religion, in MARRIAGE AND DIVORCE IN A MULTICULTURAL CONTEXT, supra note *, at 11; AM. LAW INST., PRINCIPLES

    OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 708(1) (2002); cf. Stark, supra

    note 10, at 1482.

11. See John Witte, Jr., Foreword, supra this issue.

    examples from Islam. Part I outlines tensions faced by members of both minority and majority religious communities, who view their family issues as controlled by both their religious community and by the demands of the civil state. Part II explores possible paths ahead for the intersection of religious beliefs and civil law on marriage and divorce in the United States. The Essay then offers some concluding reflections.

    
    

    1. LEGAL PLURALISM,13 MARRIAGE, AND JURISDICTIONAL OVERLAP

       
       

       For many religious individuals (indeed, even for many nonreligious individuals), marriage is not merely a private law contract between two individuals but also an important familial and community event.14 It is not merely an avenue by which the state confers status benefits on a couple, but

       often serves as an entrance marker into various forms of adulthood and community. It is not merely an act to which compliance with state procedural forms of adequate notice and consent are sufficient, but often acts as the marker of union between two families requiring a religious ceremony, a qualified officiant, and capable and willing...