Rethinking the law, not abandoning it: a comment on "overlapping jurisdictions".

• Author: Horwitz, Paul
• Position: Article by John Witte Jr. and Joel A. Nichols in this issue, p. 321 - Faulkner Law Review Symposium

INTRODUCTION

In an extraordinary outpouring of work, John Witte and Joel Nichols have offered students of law and religion a careful, nuanced examination of the relationship between marriage, religion, and the law. (1) It is, Witte rightly notes, a close and complex relationship, in which marriage serves "as both a legal and a spiritual institution--subject at once to special state laws of contract and property, and to special religious canons and ceremonies." (2) For a variety of reasons--including the degree to which marriage has traditionally been woven into the legal framework of society without losing its religious roots, and the shift of marriage as a legal construct to a more privatized and contract-based status (3)--a close look at marriage and the law reveals just how complex the relationship between law and religion can be.

In their contribution to this Symposium, Witte and Nichols examine these questions through the lens of one particular issue: the place of shari'a, or Islamic law, within the broader Western legal framework, and specifically the relationship between Muslim family law and general marriage law. Despite their superficial plausibility, Witte argues, none of the standard arguments in favor of allowing some form of Muslim law to govern marriages in the West--"religious freedom, non-discrimination, political liberalism, and religious autonomy"--fully explains or justifies this result. (4) The issues raised in this area, he concluded, are deep and intractable. In the long run, these issues might be better addressed through the same complex process of negotiation, compromise, and mutual influence and accommodation that characterized, and continues to characterize, the relationship between mainline Christianity and the Western state over the past half-century, with respect to marriage as well as many other subjects. (5)

I do not disagree with this broad conclusion. As a descriptive matter, it seems true that the relationship between law and religion is just that: a relationship, one that is mutual and evolving and cannot be characterized with rigidity or finality. As a normative matter, I am also sympathetic to the view that no single value or argument is likely to succeed at providing a comprehensive "solution" to the problem of church-state relations. (6)

A symposium would be of little use without a little disagreement, however. So let me focus on a couple of areas--one narrow and one much broader--in which I depart from Witte's finely delivered views.

I deal with the narrower issue in the first part of this commentary. Despite my skepticism about "value monism" in law and religion, as a practical and doctrinal matter, sometimes a single value can actually be quite powerful in addressing a particular law and religion dispute. So it is with the shari'a debate. In an important recent case, Awad v. Ziriax, (7) the United States Court of Appeals for the Tenth Circuit upheld an injunction against the so-called "Save Our State Amendment," an Oklahoma state constitutional initiative "prevent[ing] Oklahoma state courts from considering or using Sharia law." (8) I argue that Awad represents one of those church-state disputes in which equality is a well-suited analytic tool. Equality, by itself, may not be a sufficient or even coherent tool for every circumstance. But it did appropriate work in this case.

More broadly, I want to voice my discomfort with the way in which Witte, in his initial take at the Symposium, framed the dispute between the state and adherents of the use of shari'a in Western marriage law. "Shari'a advocates," he asserted, "have given up on the state and its capacity to reform its laws of sexuality, marriage, and family life--and they want to become a law unto themselves." (9) This is a strong statement, (10) and a disquieting one--particularly in the United States, which is not much given to Islamic extremism and has been very successful on the whole in managing religious pluralism.

Although there are some grounds for Witte's description, this is not the only way to see things. Thinking of the champions of shari'a as having "given up on the state," or as desiring "to become a law unto themselves," depends a great deal on how we understand those protean concepts, "the state" and "the law." In the second part of this commentary, I argue that we need not think of religious arbitration panels and other mechanisms of religious law as an utter abandonment of the state or the law. Rather, we might understand them as a challenge to what we mean by those terms. They invite us to adopt a different and broader view of what constitutes the "law"--and, perhaps, a more skeptical view of the dominance of the "state."

1. WHEN EQUALITY WORKS: AWAD

   A key trend in First Amendment law over the past several decades has been the increasing prominence of equality as a central justification for, and doctrinal tool in, the freedoms of speech and religion. This understanding of the First Amendment dates back at least to Kenneth Karst's path-setting article on the subject, (11) although there were traces of this idea in the decisions of the United States Supreme Court for some time before that. Although a good deal of the scholarly literature has focused specifically on the relationship between equality and free speech, (12) a substantial literature has found the same trend with respect to the Religion Clauses. On this view, both the Free Exercise Clause and the Establishment Clause were once understood primarily in terms of liberty, or separationism, or other values, but are now understood, by the courts and others, as centering on whether a law affecting religion violates principles of equality. (13) Equality lies at the heart of one of the most influential theoretical treatments of the Religion Clauses in recent years, the "equal liberty" approach advanced by Chris Eisgruber and Larry Sager. (14)

   The equality-centered view of law and religion has been subject to important challenges and critiques. (15) In particular, scholars have argued that such an approach falters because religion itself is constitutionally distinct, and thus cannot be fully and soundly dealt with through a leveling value like that of equality. (16) They have also argued, in keeping with a longstanding argument about the "emptiness" of equality, (17) that a rule of equal treatment or nondiscrimination cannot stand on its own bottom, because it depends on a host of contested questions about what constitutes equal treatment or discrimination. (18)

   Witte's argument that legal deference to Islamic family law finds no absolute defense in an argument from religious equality is similar to the latter argument, although it is grounded more on history than on abstract principle. The equality-based argument for respect for Islamic law in marriage, among other contractual arrangements, contends that Islamic law and legal bodies ought to be accommodated on an equal basis with other religious systems that are given legal recognition, such as the system of rabbinical courts to which some religious Jews turn in dealing with marriage issues. As Witte has argued elsewhere, however, "[t]he current accommodations made to the religious legal systems of Christians, Jews, First Peoples, and others in the West were not born overnight. They came only after decades, even centuries of sometimes hard and cruel experience, with gradual adjustments and accommodations on both sides." (19) On this view, one can argue that Islamic law is entitled to be treated the same as other religious systems within Western law, if it is like those other religious systems--but they are not necessarily alike, because there has already been a long period of mutual influence and accommodation between Western legal regimes and those other religious systems. Islamic law will have to earn its own unique place in relation to the governing law of the United States and other western legal regimes. It cannot simply show up and claim equal status with other religious legal systems that have a long and unique relationship with the secular legal regime. (20)

   Insofar as Witte is arguing that an equality argument depends on the particular salient similarities and differences between the objects being compared, and that--even if we could agree on what constitute morally relevant similarities or differences--we would still have to dig...