Multi-tiered marriage: ideas and influences from New York and Louisiana to the international community.

AuthorNichols, Joel A.

ABSTRACT

This Article contends that society in the United States needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction. Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end--both within and without the United States--which might serve as the framework for further discussions.

Within the United States, the relatively new covenant marriage statutes of Louisiana, Arizona, and Arkansas provide a form of two-tiered marriage and divorce law. But there is even an earlier, and potentially more profound, example in New York's get statutes. New York's laws derive from civil statutes that deal with specific problems raised by the intersection of civil law and Jewish law in marriage and divorce situations. New York's laws implicitly acknowledge that there are multiple understandings of the marital relationship already present among members of society. These examples from within the United States lay the groundwork for a heartier discussion of the proper role of the state and other groups with respect to marriage and divorce law.

As part of that discussion, the Article contends that the United States should look outward, to the practices of other countries. Several other nations--including India, Kenya, South Africa, and others--have ensconced multiple understandings of marriage in their own civil laws. That is, the state has (to varying degrees) ceded control and authority of marriage to other tribunals--or it has reified more than one understanding of marriage in its civil law. Such multiple understandings are generally predicated upon religious grounds. These other nations and their comparative practices could serve as predecessors for new understandings of a more robust pluralism at U.S. law.

TABLE OF CONTENTS I. INTRODUCTION II. A SELECTIVE HISTORY OF MARRIAGE AND DIVORCE LAW JURISDICTION III. DOMESTIC MOVEMENT TOWARD MULTI-TIERED MARRIAGE A. Covenant Marriage Laws (Louisiana, Arkansas, and Arizona) B. New York's Get Statutes 1. Jewish Law of Marriage and Divorce 2. Effect of Dual Systems of Marriage and Divorce 3. The Introduction of Get Statutes 4. New York's Laws as Precursors to Covenant Marriage Statutes IV. INTERNATIONAL MODELS A. India 1. Hinduism 2. Islam 3. Christianity 4. Parsi (Zoroastrianism) 5. Civil Marriage and Divorce B. Kenya 1. Civil Marriage/Divorce and Christianity 2. Islam 3. Hinduism 4. Customary Law C. South Africa 1. Civil/Christian Marriage 2. Customary Marriage 3. Muslim Marriage D. Other Examples V. CONCLUSION I. INTRODUCTION

The Supreme Court recently remarked: "Long ago we observed that 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the law of the States and not to the laws of the United States."' (1) The very way that this statement was made, in an off-hand way in a case otherwise quite notable for its challenge to the validity of the Pledge of Allegiance, underscores how very common our basic assumption is that marriage and divorce law is entirely and exclusively a state law matter. (2)

But even more basic than this federalism assumption are two further, usually unstated, assumptions about family law. The first is that the civil authority (generally the several states) is the sole relevant authority for matters relating to marriage and divorce. The second is that within state law there may only be one regulatory regime governing matters of marriage and divorce. Thus, there is both unitary jurisdiction and a uniform law applied to couples--above (or below) which individuals are not permitted to deviate. (3)

Recently, however, multi-tiered regimes (4) have arisen in U.S. law despite these tendencies toward unitary principles. The most notable of these is the "covenant marriage movement," which has found legislative success in three states to date. (5) This limited legislative success has been far surpassed by voluminous commentary and reflection upon the notion of "covenant marriage laws." (6) One of the points of contention among critics of these covenant marriage laws is that they create "two-tiered system[s] of marriage," (7) by allowing couples to choose whether to enter "a contract marriage, with minimal formalities of formation and attendant rights to no-fault divorce ... [or] a covenant marriage, with more stringent formation and dissolution rules." (8)

A different kind of multi-tiered regime predated the covenant marriage model, though. While the nation's first covenant marriage law came into effect in Louisiana in 1997, New York has recognized more than one model of marriage since 1983. (9) It was in that year that New York passed the first get statute, seeking to alleviate the harshness of civil divorce upon Jewish women. (10) While New York's get laws are of a substantially different nature than the more recent covenant marriage laws, both sets of reforms move away from strictly unitary models and recognize greater pluralism in marriage and divorce law. This is a salutary move, for the tendencies within the United States toward uniform jurisdiction and uniform application of a single set of laws are neither historically mandated nor uniformly accepted by the international community. (11)

Instead of unitary notions of jurisdiction and uniform application of a single law, a multi-tiered system holds substantial promise. At least two reasons present themselves as rationales for the changes to date in U.S. law (evidenced by Louisiana and New York). The first is the sad and serious crisis of marriage in civil society, (12) evidenced by a wealth and welter of somber statistics about increasing divorce rates and the attendant effects on children and adult well-being. (13) This was the driving force behind the covenant marriage laws, especially in Louisiana. (14) The second is that there is more than one conception of marriage and divorce law in a plural society. (15) This rationale was part of the impetus for the New York get statutes. (16)

These two rationales can readily be expounded upon to suggest further pluralism in marriage and divorce law. First, the statistics of increasing divorce rates and the attendant consequences of divorce can be expanded to encompass a host of ongoing debates about the proper and best way to "revitalize" the institution of marriage. (17) Solutions range from the "abolition of marriage" (at least insofar as the civil state has any say in it) (18) to increasing federalization of the definition of marriage, (19) to all manner of things in between.

Second, the confession that there is more than one conception of the definition of marriage quite naturally expands to the recognition that the United States is a tremendously pluralistic society (20)--especially with regard to religion. (21) We honor the best of our traditions when we recognize and reify our pluralistic nature (22)--especially when we are careful to balance that pluralism with protections for women and children; with procedures to foster fairness; and with policies that advance shared societal values of non-discrimination, free exercise, parental control, and the like. (23)

This Article proposes to take these twin rationales--the admitted changes in the cultural definition of marriage and divorce, and the religiously plural nature of the multi-cultural U.S. society--to further the conversation once again. Rather than retaining our unitary and singular notions of marriage and divorce law, perhaps we should take seriously the possibility of multi-tiered marriage. Perhaps we should allow for the possibility that marriage and divorce might have more than one form at law. (24) And perhaps if we open the discussion to more than one understanding of marriage, we should acknowledge the thoughtful contributions and reflections by religious individuals and groups regarding marriage and divorce law. (25) This Article posits that those religious groups have an appropriate role to play in assisting the state to define the metes and bounds of the marital relationship.

Thus, this Article proffers the concept of promoting multi-tiered marriage in the multi-cultural and religiously pluralistic society of the United States. It is unclear what form this multi-tiered marriage might take, and a variety of possibilities suggest themselves as alternatives. (26) It is possible that U.S. law will continue on its path of viewing marriage through a strict contractarian lens, such that reforms arise as a matter of enforcing the married parties' agreement. (27) One strong variant of this method would be permitting the parties to submit themselves to the jurisdictional authorities of a religious tribunal to resolve possible future disputes, in essence committing themselves to an arbitration-like tribunal. It is also possible that some variation on the state laws of New York, Louisiana, and others might be a better alternative, wherein multiple (and maybe even competing) models of marriage are available to couples through the civil law itself. (28) Or there may be other possibilities that are better for the situation in the United States. More critical than the precise form, though, is that the broader conversation include the possibility of the state's ceding some of its jurisdictional control and hegemony. A number of religious communities are competent and capable of adjudicating the marital rites and rights of their respective adherents, and this may well be a better alternative than the current least common denominator notion of marriage law. (29)

To advance the conversation down this path, this Article begins by looking backward, and then turns inward, and finally turns outward. Thus, Part II...

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