John Witte, Jr.
Anglican Archbishop Rowan Williams set off an international firestorm this month by suggesting that some accommodation of Muslim family law was "unavoidable" in England. His critics argued that England will be beset by "licensed polygamy," "barbaric procedures" and "brutal violence" against women and children, all administered by "legally ghettoized" Muslim courts immune from civil appeal or constitutional challenge. Consider Nigeria, Pakistan and other former English colonies that have sought to balance Muslim Sharia with the common law, other critics added. The horrific excesses of their religious courts — even calling the faithful to stone innocent rape victims for dishonoring their families — prove that religious laws and state laws on the family simply cannot coexist. Case closed.
This case won't stay closed for long, however. The archbishop was not calling for the establishment of independent Muslim courts in England, let alone the enforcement of Sharia law by state courts. He wanted his nation to have a full and frank debate about what it means to be married in a growing multicultural society. What forms of marriage should citizens be able to choose, and what forms of religious marriage law should government be required to respect? These are "unavoidable" questions for any modern society dedicated to protecting both the civil and religious liberties of all its citizens.
These are quickly becoming "unavoidable" questions for America, too, where we already have a lot more marital pluralism than a generation ago. Various legal options are now available, from Massachusetts, which offers traditional marriage and same-sex marriage, to Louisiana, Arkansas and Arizona, where couples are offered either a simple contract marriage or a covenant marriage with more rigorous rules of entrance and exit. Still other options now draw in religious law, too. In more than twenty states, marriages arranged by Hindu, Muslim and Unification Church officials have been upheld, with divorce the only option left for parties who claim coercion or surprise. A number of religious couples now choose to arbitrate their marital and family disputes before religious courts and tribunals rather than litigate them in state courts. Courts generally uphold the judgments of Jewish and Christian tribunals in these cases. Muslims, Hindus and other religious minorities are now pressing for equal treatment.
To deny Muslims divorce arbitration while granting it to Jews and Christians is patently discriminatory. But the bigger question is whether state recognition of any religious marriage laws puts us on a slippery slope that ends with parallel state and religious legal systems of marriage, and no control over the latter if they become abusive. What if religious parties want freedom to "covenant" out of the state's marriage laws and into the marriage laws maintained by their own voluntary religious communities? Which religious laws deserve state deference: just those governing husband and wife, or those on parent and child, property and inheritance, education and maintenance? Which religious communities have religious laws that deserve state deference – Christians? Jews? Muslims? Mormons? Hindus? What about the twelve hundred other religions now in place in America, a few with very different marriage and family norms? These are the frontier questions of religion and marriage that will soon face American courts and legislatures. We don't have much constitutional guidance yet, and to simply invoke the principle of separation of church and state, return all marriage and family questions to the state, and roll back the concessions already made to religious laws and tribunals would have enormous implications for the complex laws of labor, charity, and education, where religions and states cooperate closely.
We have better guidance in the law of religion and education. A century ago, states wanted a monopoly on education in public schools. Churches and parents claimed a right to educate their children in religious schools. In the landmark case of Pierce v. Society of Sisters (1925), the Supreme Court held for the churches and ordered states to maintain parallel public and private education options for their citizens. But later courts also made clear that states could set basic educational requirements for all schools. Religious schools could add to the state's minimum requirements, but they could not subtract from them. Religious schools that sought exemptions from these requirements found little sympathy from the courts, which instructed the schools either to meet the standards or lose their licenses to teach.
Marriage, like education, is not a state monopoly, but the state has long set the threshold requirements of what marriage is and who may participate. Religious officials may add to these state law requirements but not subtract from them. A minister, for example, may insist on premarital counseling before a wedding, even if the state will marry a couple without it. But if a minister bullies a minor to marry out of religious duty, the state could throw him in jail. If religious tribunals get more involved in marriage and family law, states will need to set threshold requirements. Among the most important rules to consider: No forms of marital union not recognized by the state. No violation of elementary freedoms of contract and conscience. No threats or violations of life and limb. No violation of basic rules of procedural fairness, and more. Religious tribunals may add to these requirements but not subtract from them. Those who fail to conform will lose their licenses and will find little sympathy when they raise religious liberty objections.
This type of arrangement worked well to resolve some of the nation's hardest questions of religion and education. And it led many religious schools to transform themselves from sectarian isolationists into cultural leaders. Such an arrangement holds comparable promise for questions of religion and marriage. It not only prevents the descent to "licensed polygamy," "barbaric procedures" and "brutal violence" that the archbishop's critics feared. It also encourages today's religious tribunals to reform themselves and the marital laws that they offer.
John Witte, Jr. is Director of the Center for the Study of Law and Religion at Emory University in Atlanta.
Editor's Note: A longer version of this essay is available on the website of the Center for the Study of Law and Religion at Emory University, at http://www.ajc.com/opinion/content/printedition/2008/02/24/marriage0224.html.