• Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions

    Author(s):
    Joel A. Nichols, John Witte, Jr. (see profile)
    Date:
    2013
    Subject(s):
    Law, Multiculturalism
    Item Type:
    Article
    Tag(s):
    Anti-sharia, divorce, sharia, premarital contracts, Law and Religion, Marriage Law, Family Law
    Permanent URL:
    http://dx.doi.org/10.17613/fqf2-8w87
    Abstract:
    In many areas of law and society, religion and law exercise “overlapping jurisdictions.” Often such overlapping claims concern institutions that have both religious and political dimensions, such as education and schooling; charity and social welfare; and marriage and family life. It is the third of these mixed institutions – marriage and the family – that is the focus of this Essay. The headline battles today are over what forms of marriage should be recognized by the state: straight versus same sex marriage, contract versus covenant marriage, monogamous versus polygamous marriage, and more. But an emerging battle concerns not the forms of marriage, but the forums in which marriage and family cases are adjudicated. Specifically, the new battle is looming over the place of faith-based family laws and religious tribunals. But hard questions persist that cannot be easily swept away with a mere assertion that religious groups should enjoy autonomy over the marriage and family affairs of their voluntary faithful. Those are the questions that we have been probing and encouraging others to probe in this and prior writings: What are the appropriate lines between the civil state and religions with respect to marriage? Civil marriage and divorce are perhaps a least common denominator for all citizens, but can there be variations if accompanied by base level protections for women and children? And how can the state best protect vulnerable members and also advance its liberal ends? Such hard questions need not lead to a jurisdictional stand-off between law and religion, however, nor to a universal and over-reaching claim by the state. Instead, negotiation, compromise, and mutual respect may lead to more nuanced and achievable results – especially if we are careful not to be so distracted by conversations about the propriety of Shari'a that we miss the actual complications of the growing marital and legal pluralism in the United States.
    Metadata:
    Published as:
    Journal article    
    Status:
    Published
    Last Updated:
    6 months ago
    License:
    All Rights Reserved
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