Nichols on Religion and Marriage

Joel A. Nichols (University of St. Thomas School of Law) has posted Religion, Marriage, and Pluralism. The abstract follows.

In November 2010, Oklahoma voters overwhelmingly passed the first “anti-sharia statute” as an amendment to their state constitution. Although federal courts have held the Oklahoma amendment unconstitutional, several other states continue to move toward various bans on sharia law. Such statutes would have the greatest impact in family law.

This article describes tensions faced by members of both minority Muslim and majority Christian religious communities, who view family issues as controlled both by their religious community and by the demands of the civil state. The article outlines four possible future paths for the intersection of religion and the civil state regarding marriage and divorce. Within these four alternatives, it is clear that even if states purport to disallow sharia (or any other religious beliefs) such a pronouncement will not eliminate adherence to sharia among faithful Muslims. It would mean, at most, that sharia would not be enforced by civil courts. At least for some observant Muslims, the effect will be the same as in the United Kingdom or Ontario: Islamic religious arbitrations will continue to exist outside the protection of the civillaw.

We must face the question whether and how our law should recognize the dual nature of marriage for many citizens, whereby they are bound not only to civil norms regarding marriage and divorce but also to religious norms. Can we take seriously those dual allegiances while also hewing to the overarching norms of equality and protection for vulnerable parties that are part of the fabric of the larger civil society itself?

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