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  • Print publication year: 2015
  • Online publication date: October 2015

15 - Family Law


This chapter examines key issues at the intersection of religion and family law. The chapter begins with a brief look at the states’ accommodation of religious choice in laws governing entry into marriage. Next, the chapter explores the rich topic of religion and custody of children, examining (1) the role of religion as a positive or negative factor in the choice of a primary custodian, (2) restrictions on a parent's behavior or time with the child for reasons related to religion, and (3) enforcement of parental agreements concerning the child's religious upbringing. The chapter then turns to adoption, examining religious matching laws and judicial inquiries into the religion of prospective adoptive parents. Finally, the chapter explores religious choices about divorce, in particular, the question of whether a civil court will enforce a religiously grounded marriage contract.

A. Entering Marriage: Solemnization

In the United States, marriage has always been the subject of civil authority. The state, rather than the church or the individual, controls access to and exit from the relationship. Marriage may begin with a private agreement, but this agreement gives way to a series of nonnegotiable terms imposed by the state. Simply put, marriage is a status arising from a contract. In an increasing number of instances, however, the state defers to private choices about marriage. A simple and long-standing example of this deference lies in state laws that give parties freedom to solemnize their marriage through a religious ceremony.

Every state permits religious solemnization of marriage. State statutes vary, however, in their willingness to defer to private choices about religious solemnization. Some statutes are quite broad, permitting solemnization, for example, “in accordance with any mode of solemnization recognized by any religious denomination.” Other statutes are more particularized, identifying specific religious faiths and religious officials who may solemnize a marriage. Some states permit solemnization in religious organizations that have no ministers or priests. Some statutes specify that the religious officiant must perform the ceremony in accord with religious rules or customs.

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