Two recent stories in the New York Times describe how conflicts in religious law and civil law are being handled in the USA, especially in family law.
There are differences between the American situation and the British, but the separation of church and state do not necessarily make the issues simple or easy to adjudicate.
Adam Liptak writes:
The larger question, legal experts in the United States said, is whether government courts should ever defer to religious ones. The answer may depend on whether the people involved authentically consented to religious adjudication, whether they are allowed to change their minds and whether the decisions of those tribunals are offensive to fundamental conceptions of justice.
All of that, said John Witte Jr., a law professor at Emory University, “is the big frontier question for religious liberty.”
But judges are hesitant to bring in religious questions when deciding on issues of child custody and divorce, even when the religious difference is at the heart of the dispute.
Neela Banerjee wrote:
Across the country, child-custody disputes in which religion is the flash point are increasing, part of a broader rise in custody conflicts over the last 30 years, lawyers, judges and mediators say.
“There has definitely been an increase in conflict over religious issues,” said Ronald William Nelson, a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section. “Part of that is there has been an increase of conflicts between parents across the board, and with parents looking for reasons to justify their own actions.” Another factor, he said, is the rise of intermarriage and greater willingness by Americans to convert.
Nobody keeps track of who wins in these religious disputes, but lawyers say that judges are just as likely to rule in favor of the more religiously engaged parent as the other way around. That is because, for constitutional reasons, judges are reluctant to base their rulings primarily on the religious preferences of parents.
Judges do not want to take on custody disputes rooted in religion, said lawyers like Gaetano Ferro, who until recently served as president of the American Academy of Matrimonial Lawyers. Mr. Ferro said, “How will a judge say in any rational fashion that Islam is better than Buddhism, Catholicism better than Judaism, or Methodism better than Pentecostalism?”
As a result, more and more states have tried to keep custody disputes out of court by mandating mediation. But the effect has been piecemeal, and religious disputes have proven to be among the most difficult to resolve, lawyers said.
Some of the chief questions that remains unanswered relate to the competing interests of the particular faith community and societies interest in protecting individual liberty. For example, if a person may frelly choose to join and leave a religious group, should the decisions of a religious tribunal be enforced upon a person who has left the religious body? Another question is how to balance religious laws, that are based on customs and norms of a culture and time far removed from our own, against legitimate societal interests today. Which societal interest takes precedence: the cultural and religious integrity of a faith group, or issues of gender equality, not to mention the safety of women and children?
Almost no one suggests that criminal law should take into account the defendant’s religion in meting out punishment. At the other extreme, few people object to allowing purely commercial disputes between sophisticated businesspeople to be adjudicated through private arbitrations. The hard questions...arise in the area of family law, where the agreement to arbitrate may be uninformed or obtained by duress. State courts have occasionally refused to enforce separation agreements reached through bet din arbitrations on the ground that the woman involved had been pressured into participating.
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?”
Most fundamentally, some judgments from religious tribunals may be at odds with constitutional protections, human rights and basic notions of fairness.
In an article to be published shortly in The Washington and Lee Law Review, Robin Fretwell Wilson, a law professor at Washington and Lee University, wrote that Muslim women who decide to seek a divorce can face harsh financial consequences under Islamic law. “Threatened with the prospect of certain poverty,” she wrote, “some women will surely be forced to stay in an abusive relationship.”
Professor Wilson said in an interview that government courts should refuse to enforce any ruling from a religious tribunal that leaves a woman worse off than she would have been in a conventional divorce.
“Society has a stake in the outcome,” she said. “Some religions are tilted against women.”
Read the rest: New York Times: When God and the Law Don't Square
See also: New York Times: Religion joins custody cases, to judges unease.