Next month, I.B. Tauris Publishers will publish Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Process edited by Lena Larsen, Ziba Mir-Hosseini, Christian Moe and Kari Vogt. The publisher’s description follows.
This book examines how male authority is sustained through law and court practice, the consequences for women and the family, and the demands made by Muslim women’s groups. Examining the construction of male guardianship (qiwama, wilaya) in the Islamic tradition, it also seeks to create an argument for women’s full equality before the law. Bringing together renowned Muslim scholars and experts, anthropologists who have carried out fieldwork in family courts, and human rights and women’s rights activists from different parts of the Muslim world, from Morocco to Egypt and Iran, this book develops a framework for rethinking Islamic Law and its traditions in ways that reflect contemporary realities and understandings of justice and gender rights.
Asifa Quraishi-Landes (U. of Wisconsin Law School) has posted Rumors of the Sharia Threat Are Greatly Exaggerated: What American Judges Really Do with Islamic Family Law in Their Courtrooms. The abstract follows.
American rule of law has always considered issues of accommodations of religious minorities seeking to follow rules that differ from American secular legal norms. In other words, Sharia is by no means the first religious law to be presented in American courts. Two centuries of case law involving religious-based requests from American Catholics, Jews, Mormons, Native Americans, and others has resulted in several established policies and practices that American judges use to adjudicate requests for consideration of religious law. In short, requests for consideration of religious law are balanced with constitutional and legislative principles, using judicial tools such as comity, public policy, and unconscionability. Because many Americans are unaware of this established practice, the anti-Sharia campaign has been able to create a concern that judicial consideration of Sharia-based claims from Muslim American litigants is compromising American law and values. The case law, however, shows a different picture. Judicial treatment of Sharia requests is not threatening the American rule of law, it is an illustration of it. As with requests from other American religious groups, sometimes Sharia requests win, and sometimes they don’t. Reasonable minds differ over whether the courts get it right each time. But in every case, the job of the judge is a careful balancing of rights against each other, not an automatic trumping of religious practice by secular law or vice versa.
The campaign to ban Sharia in the United States appears to be directed at two different alleged threats: (1) that Sharia will take over American law, and (2) that judicial accommodation of Muslim religious practices is eroding our secular rule of law. The first is a non-issue: there is no real chance that Sharia will replace American law or our Constitution. But the second is worth talking about. It asks a question crucial to the nature of our secular constitutional democracy: Can we legally accommodate a diversity of religious legal practices among our citizens and, if so, with what limits? I will address one aspect of this question by summarizing in Part II how Islamic family law is currently accommodated in American courtrooms today and discussing in Part III why this does not threaten women’s rights or our American rule of law. In Part IV, I consider the global and domestic implications of Muslim American tribunals serving the dispute resolution needs of American Muslims. Part V concludes.
Farrah Ahmed (University of Oxford, Melbourne Law School) and Jane Calderwood Norton (University of Birmingham School of Law) have posted Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women. The abstract follows.
For the most part current UK law does not interfere with the operation of religious tribunals. The role of religious tribunals in family matters in the United Kingdom is, however, fiercely debated. While many considerations are at play in these debates, two are often set up against each other. Religious freedom is often given, on the one hand, as a reason not to interfere with religious tribunals. On the other hand, however, concern for the vulnerable – especially women in religious groups – is thought to weigh in favour of greater interference. This article evaluates the current legal response to religious tribunals in the UK in the context of family matters against these two key values. It also clarifies and expands on how religious tribunals can both harm and enhance these values. It finds that contrary to the way the debate is often presented, religious tribunals can harm religious freedom while, at the same time, they can also enhance the welfare of vulnerable persons.
We are proud to announce that one of our talented student fellows, Andrew Hamilton, has won third place in the national “Religious Freedom Student Writing Competition,” sponsored by the Washington D.C. Mid-Atlantic Chapter of the J. Reuben Clark Law Society and the International Center for Law and Religion Studies. Andy’s paper, The New York Marriage Equality Act and the Strength of its Religious Exceptions (supervised by Mark), explores whether the religious exceptions under the New York same-sex marriage law allow Catholic Charities to refuse to place foster children with same-sex couples.
The paper will be published in a forthcoming issue of the Journal of Catholic Legal Studies. Andrew will be traveling down to Washington D.C. this Thursday to attend the 2012 International Religious Liberty Award Dinner, whose guest of honor is Douglas Laycock.
Warm congratulations to Andy!
The Sophia Institute will host a conference, “Family, Marriage and Love in Eastern Orthodoxy,” at Union Theological Seminary in New York on December 7. The call for papers invites legal perspectives on the subject. Details are here.
This October, the University of Chicago Press will publish Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt by Hussein Ali Agrama (University of Chicago). The publisher’s description follows.
The central question of the Arab Spring—what democracies should look like in the deeply religious countries of the Middle East—has developed into a vigorous debate over these nations’ secular identities. But what, exactly, is secularism? What has the West’s long familiarity with it inevitably obscured? In Questioning Secularism, Hussein Ali Agrama tackles these questions. Focusing on the fatwa councils and family law courts of Egypt just prior to the revolution, he delves deeply into the meaning of secularism itself and the ambiguities that lie at its heart.
Drawing on a precedent-setting case arising from the family law courts —the last courts in Egypt to use Shari‘a law—Agrama shows that secularism is a historical phenomenon that works through a series of paradoxes that it creates. Digging beneath the perceived differences between the West and Middle East, he highlights secularism’s dependence on the law and the problems that arise from it: the necessary involvement of state sovereign power in managing the private spiritual lives of citizens and the irreducible set of legal ambiguities such a relationship creates. Navigating a complex landscape between private and public domains, Questioning Secularism lays important groundwork for understanding the real meaning of secularism as it affects the real freedoms of a citizenry, an understanding of the utmost importance for so many countries that are now urgently facing new political possibilities.
Zvi H. Triger (U. of Alabama School of Law) has posted Freedom from Religion in Israel: Civil Marriage and Non-Marital Cohabitation of Israeli Jews Go to the Rabbinical Court. The abstract follows.
The only form of marriage that is recognized under Israeli law is religious marriage. Following the Supreme Court’s ruling in the landmark 1963 Funk Schlesinger case, Israeli authorities must register couples who got married abroad as married. Many couples who wish to avoid the religious monopoly on marriage and divorce choose this rout. However, they are utterly wrong in thinking that they achieve freedom from religion by doing so.
In a 2006 landmark decision the Supreme Court held that the rabbinical court system has jurisdiction over the divorce of couples who got married in civil marriages abroad. While they do not need to have a full religious get procedure, the rabbinical court has exclusive jurisdiction over the dissolution of civil marriages of Jews. The Court’s decision was based on halachic principles, and was pre-approved by a panel of the rabbinical court.
However, rabbinical courts have been ignoring the Supreme Court’s injunction concerning the application of a speedier, more liberal divorce procedure in the dissolution of civil marriages, and they insist on performing a full Jewish get procedure. This article presents this trend, analyzes this phenomenon and offers tentative and preliminary speculations as to the reasons for and the direction of these developments.
Myles Frederick McLellan (U. of Ottawa) has posted Jehovah’s Witnesses and Child Protection Legislation: The Right to Refuse Medical Consent. The abstract follows.
Anglo-American law has for some time recognized the fact that the rearing of children cannot always be handled properly within the context of the natural family unit. Nevertheless, it is a far cry from the proposition that children cannot by their parents to a determination that they should not be so raised. The most bitter confrontation between parents and state usually occurs when the parents, far from being uncaring, interact with their children according to certain ideological, ethical or religious principles. Jehovah’s Witnesses are perhaps the most prominent example of this class of parent. They have, because of their interpretation of the scriptures, forbad certain forms of medical or surgical treatment. They have a deep religious conviction against the administration of blood transfusions. Parents who refuse to give consent for a blood transfusion for their children genuinely believe they are providing for their children’s best interest. When a child’s life is dependent upon a blood transfusion, there is an obvious clash of child-care standards – those imposed by the tenets of a religious faith and those imposed by the state.
It is the aim of this article to explore the remedies available to the state in such situations, and then to discuss the propriety of state intervention in such cases.
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.
Robin Fretwell Wilson (Washington and Lee University – School of Law) has posted The Perils of Privatized Marriage. The abstract follows.
Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society, and how to accommodate religion in matters of family law. Efforts to respect religious understandings in family disputes seem at first blush innocuous: they would allow religious groups to define their own norms and celebrate the rich diversity of society. However, the experience of women and children of multiple faiths across the world demonstrates that religious deference extracts an unconscionable price. As the Volume in which this Chapter appears illustrates, such proposals would confer considerable latitude in family matters not only on adherents of Islam, but on Christians, Jews, and members of other faiths.