How should the civil state relate to marriage and divorce in modern society? Some, from both the left and right ends of the political spectrum, are calling for the state to extract itself from the marriage business. For many proponents of this position, this presumably would leave the label of “marriage” entirely to religious or other organizations, because the state would only handle legal benefits under some sort of civil registration regime. Others pronounce that the state should be ever more involved in regulating marriage, including extending it to same-sex couples. Still others contend that the state not only must remain involved in the regulation of marriage and divorce law but should adhere to a more traditional role concerning marriage and divorce. This is not merely a culture-wars skirmish about same-sex marriage, though, for there are serious questions about the role of the federal government versus state governments in marriage and divorce law; there is a greater diversity in various state marriage laws than has often been the case historically; there are heightened questions about the role of premarital agreements and the ability of autonomous parties to enter such agreements; and there is continued ambiguity about extraterritorial recognition of marriage and marriage-like relationships between states as a conflict-of-laws matter.

Why this fervent public discussion about marriage and the role of the civil state? There are a host of reasons, of course, not least of which are the many state benefits that flow from a legal marriage relationship. But even the word “marriage” itself is freighted with meaning – historically, religiously, culturally, and socially – and advocates on all sides remain eager for society and the law to embrace their preferred definition and understanding of marriage. The public discussion and disagreement about marriage also derive from the increasingly diverse and multicultural society in which we live. Even if there was a time historically when common understandings of marriage and divorce were shared in the United States, that time has passed.

Introduction

Anglican Archbishop Rowan Williams set off an international firestorm on February 7, 2008, by suggesting that some “accommodation” of Muslim family law was “unavoidable” in England. His speech itself was nuanced and qualified, carefully discussing the “growing challenge” of “the presence of communities which, while no less ‘law-abiding’ than the rest of the population, relate to something other than the British legal system alone.” Nonetheless, his public reflection on “what degree of accommodation the law of the land can and should give to minority communities with their own strongly entrenched legal and moral codes” gave rise to more than 250 articles in the world press within a month – with the vast majority denouncing his remarks. England, his critics charged, will be beset by “licensed polygamy,” barbaric procedures, and brutal violence against women encased in suffocating burkas if official sanction is given to shari’a courts. Despite the fact that religious citizens already turn to informal religious adjudication of family law and other disputes, critics proclaimed that giving legal sanction to such adjudications would create unequal citizenship and foster enclaves of legally ghettoized Muslim courts immune from civil appeal or constitutional challenge. Other critics pointed to Nigeria, Pakistan, and other former English colonies that have sought to balance shari’a with the common law. The horrific excesses and chronic human rights violations of their religious courts – even ordering the faithful to stone innocent rape victims for dishonoring their families – prove that religious laws and state laws on the family simply cannot coexist, they said. Case closed.

This case won’t stay closed for long, however. The Archbishop was not calling for the establishment of a parallel system of independent Muslim courts in England, and certainly not the direct enforcement of shari’a by English civil courts. He was, instead, raising a whole series of hard but “unavoidable” questions about marital, cultural, and religious identity and practice in Western democratic societies committed to human rights for all. What forms of marriage should citizens be able to choose, and what forums of religious marriage law should state governments be required to respect? How should Muslims and other religious groups with distinctive family norms and cultural practices that vary from those espoused by the liberal state be accommodated in a society dedicated to religious liberty and equality, to self-determination and nondiscrimination? Are legal pluralism and even “personal federalism” necessary to protect Muslims and other religious believers who are conscientiously opposed to the liberal values that inform modern state laws on sex, marriage, and family? Or must there instead be “legal universalism” with its attendant “exclusionary consequences”? Are these really the only options – or instead is something more akin to a “dance” between religious and civil law more appropriate and necessary?

Introduction

The U.S. Supreme Court recently remarked, “Long ago [in 1890] we observed that ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the law of the States and not to the laws of the United States.’” The context for the statement was a case followed by Court-watchers for a challenge to the validity of the Pledge of Allegiance. The very way it was made, in such an offhanded way, underscores how commonplace is the basic assumption that marriage and divorce law is entirely and exclusively a state law matter.

Even more basic than this federalism assumption are two further assumptions about family law, which run so deep they are virtually never even stated. The first is that the civil authority is the sole relevant authority for matters relating to marriage and divorce. The second is that within civil law there may only be one regulatory regime governing matters of marriage and divorce. Thus, there is an assumption of (1) exclusive jurisdiction, with all authority residing in the civil state; and (2) a “one-size-fits-all” model that applies to all couples, where no deviation from that model is permitted.

The Archbishop of Canterbury, Dr. Rowan Williams, caused a substantial stir in 2008 when he called for a “plural jurisdiction” over some disputes within the United Kingdom. The Archbishop specifically proffered a system wherein Muslims could choose to resolve family law disputes (and some other civil matters) in either religious tribunals or in British courts. In July 2008, Lord Chief Justice Lord Phillips (the most senior judge in Britain) seconded the Archbishop’s sentiment and, in public remarks, signaled his approval of the application of Islamic law (shari’a) so long as divorce rulings complied with the law of the land. These strong statements came only a few short years after public discussions in Ontario, Canada, about the propriety of religious courts operating as arbitration tribunals in family law matters. Currently in South Africa, both the legislative and judicial branches continue to contemplate the interaction between civil law and religious law with respect to marriage (especially regarding “customary marriages,” polygamy, and same-sex marriage). And India and Israel lead a number of countries in delegating jurisdiction over marriage and family life to religious law or religious tribunals.

These international examples are especially interesting in light of the fact that the United States is, by all accounts, an increasingly multicultural and religiously plural society. Despite such diversity, American family law makes two key assumptions about marriage and divorce. The first is that the civil state is the sole authority for such matters, and the second is that only one regulatory regime for marriage and divorce may exist within civil law.