Boston University of Law Public Law & Legal Theory Research Paper No. 17-13
Religion, Secularism & Constitutional Democracy (Jean L Cohen and Cécile Laborde, Columbia University Press 2016), pp. 379-399.
May 15, 2017
This chapter considers how civil and religious family law intersect in the U.S. legal system and how U.S. constitutional law shapes and constrains the accommodation of religious pluralism as it pertains to family law. To the question, “Is there too much or too little pluralism in U.S. family law?,” I answer that family law appropriately embraces a mild legal pluralism, while clearly distinguishing between civil and religious marriage. After illustrating this distinction in the context of the recent controversy over same-sex marriage, I consider two categories of cases: (1) cases in which courts consider whether to enforce terms of Jewish and Islamic religious marriage contracts, divorce agreements, or arbitration agreements, and (2) cases in which courts decide whether the principle of comity requires them to recognize foreign marriages and judgments of divorce. These cases highlight that U.S. family law generally accommodates religious pluralism, subject to constitutional norms and public policy. However, the recent enactment of state bans on the application of foreign law (so-called “anti-sharia laws”) reflects a misunderstanding – if not rejection – of this mild pluralism. Concerns over the equality of women in matters of religious family law feature in calls for such ban, particularly in a third category of cases involving religion: highly-publicized attempts to assert religious beliefs about family roles as a defense against public laws prohibiting domestic violence and sexual assault (i.e., “my religion made me do it”). Case law shows such appeals to religion do not trump the protective policies of civil and criminal law.
Linda C. McClain
Professor of Law
Paul M. Siskind Research Scholar
Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215