Sunday, February 17, 2008


Religious courts have legal authority in the US? I had no idea. I figured with freedom of assembly, no one prevents a group of the faithful from voting on some internal matter, but did not realize secular courts considered any of this official. I also only recently learned who the governor is of New York, so who knows, but I found Adam Liptak's article fascinating. I definitely understand more about how religious versus secular law worked in colonial Algeria or Old Regime France than in 2008 America. So, please do not respect mah authoritah on this. But to me, most bizarre was this quote from the leader of a Muslim lawyers' group:

“'Muslims, Christians and Jews should all deal with their own family law issues in their own arbitration councils,' she said. 'The government should stay out of the bedroom.'”

But once there are "arbitration councils," isn't government involved all the same? Not the government, but if a religious council is the only court permitted to deal with these matters, it becomes just that. There's also, of course, the question of who gets to deal with the bedroom conflicts of the religiously unaffiliated. Is the choice thus between libertarianism (or really, anarchism) or religious law for all family-related matters?

On the one hand, I see the appeal of having the (secular, U.S.) government acknowledge only partnerships and let the "marriage" issue be left to individuals, whether these individuals gather to form religious groups or not. On the other, as Liptak's article shows, there are certain disadvantages to leaving religious groups with this much power. And what does it mean to consent to abandoning your national rights in favor of religious ones?

"Once consent is given, moreover, questions arise about whether and when it may be withdrawn. 'People have a right in Western systems to change religions,' said Douglas Laycock, a law professor at the University of Michigan. 'Can they opt out after the dispute arises or after the judgment is given?'”

This really gets at my confusion. In pre-1789 France, to be a Jew was to be a member of a 'nation,' not in the modern nation-state sense, but not in a sense entirely removed from that either. Though submissive to greater powers, these nations--there were several Jewish nations in France prior to the Revolution--had political autonomy, and so were not merely collectivities of people who shared an understanding of God. From what I understand, you could not simply change your mind and think, gee, maybe Jesus is the son of God after all, and switch sides, no questions asked.

Fast-forward to 2008 America. If a Jew wishes to convert out (does this ever even happen?) or, more likely, marry out, Jewish blogs and newspapers may declare a Singles Crisis or a War on Intermarriage, but this will only have as an impact lessening whatever influence organized Judaism has in this country. In all likelihood, an intermarriage will not lead to a fall-out with one's family, will not mean changing cultures or being forced to move to a different town. But what if someone from an ultra-religious Jewish family decides to marry someone outside of the Jewish courts' jurisdiction? And what, court-wise, happens in terms of Protestants? Again we're in territory I know little about, but aren't there many, many denominations? Does each have its own council, and if so, who regulates the bedrooms of the Methodist-Baptist couples? In other words, violation of religious law can be internal, but it quite often arrives at the border of internal and external. It seems to me that it's in these cases, when an individual breaks the laws of his own religion, that the secular government needs to make itself most available.


Withywindle said...

The key word in the article appears to be "contract"--the beth din, etc., are regarded as contracts, which the state may then be called in to enforce. To what extent enforcing a contract helps enforce religious law is a fascinating question. I note, incidentally, how much of early modern political philosophy was built on meditations about contract--it would be interesting, I imagine, to see what different philosophers said about the possibility of building a unitary political system out of multiple contracts. But in the here-and-now: I think one could build a logically coherent system of limited state-enforcement of religious law, based on purely secular contract law and theory. I don't know whether the current system qualifies, but it should theoretically be possible.

Jacob T. Levy said...

What happens in terms of Protestants is: nothing. It's a regime of private contracts and precommitments to use religious adjudication procedures-- where there are no such procedures, no one contracts to use them.

In broader terms, the religious courts can operate in two ways:

1) the adjudication of purely religious questions (a get or a Catholic annulment, distinct from a civil divorce);

or 2) a precommitment (e.g. by contract or prenup) to have a particular kind of civil dispute adjudicated through them ["in the event that this particular marriage dissolves, we will go through religious arbitration in the settlement"].

"But what if someone from an ultra-religious Jewish family decides to marry someone outside of the Jewish courts' jurisdiction? "

Nothing, except for the possibility of ostracism, which is real in the case of the Hasidim. But the courts don't have from-birth general jurisdiction; that marriage wouldn't come under their jurisdiction either at its beginning or at its end.

In the U.S. one could, at the same time, be in a marriage that was subject to the jurisdiction of rabbinical courts in the event of dissolution, a credit card agreement that was subject to the law of Delaware applied by a private arbitrator in the event of dispute, a contract with a travel agent to be adjudicated according to the laws of England applied by a New York state court, and an inheritance case to be adjudicated by a sharia tribunal. Jurisdiction follows case-by-case consent, not whole-person identity.

Phoebe Maltz Bovy said...

"Jurisdiction follows case-by-case consent, not whole-person identity." This makes sense, and makes for a lot less dramatic of a situation than I'd imagined.

In response to both comments: I know almost nothing about contract law, contracts, or law, which probably explains my bafflement.

J. Otto Pohl said...

The Ottoman Empire had system of self rule for religious communities called the millet system. Many of the proposals in the UK and US for Sharia councils sound like the millet system in reverse to me. Under the Ottoman millet system Christian and Jewish communities had their religious legal autonomy respected by an Islamic government. Now some Muslims want similar rights under Christian (UK) and Secular-Judeo-Christian (US) governments. In the UK the government already recognizes millet like rights for the Jewish community in the form of the Beth Din courts.