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"No Going Back: Why The Secular Marriage Model Must Resist The Call To Assimilate Religious Divorce Law" by Marcus Almond

No Going Back: Why The Secular Marriage Model Must Resist The Call To Assimilate Religious Divorce Law

by Marcus Almond

"Traditionally, religious law has played a key part in emphasizing . . . the equality of women within marriage." 12 J.L. FAM. STUD. 365 (2010). This is the audacious claim with which Adelaide Madera, researcher in Eccleastical and Catholic Law at the University of Messina begins her article, Civil and Religious Law Concerning Divorce: The Condition of Women and Their Empowerment. Not only has Madera seemingly dismissed centuries of female oppression under "personal status laws" (religious laws governing individual rights on issues such as marriage, divorce, and custody), but she also seems to dismiss much of her own article. In it, she details procedures and conditions of divorce under Catholic, Jewish, and Islamic law that can be only seen to emphasize the equality of women within marriage from a relativistic viewpoint.

For instance, perhaps the emergence in Islamic counties of required judicial intervention (what Madera terms "public divorce") in the context of "triple repudiation" (the right of a man under Islamic law to unilaterally divorce his wife simply by declaring so three times) is indeed a step toward women's rights under modern Islamic law. See Madera, supra, at 375. But this is so only if their deplorable status under classical Islamic law, where witnesses to the husband's declarations were not even required and thus the wife may not even be aware that her marriage has been dissolved, is regarded as a starting point. Id.

However, Madera contrasts this with the equality of women within marriage found in secular legal systems, such as those typified in Western jurisprudence and international human rights legislation. Id. at 367. Here, a "universalistic" approach includes non-negotiable, fundamental values, like "equal dignity of every individual, without regard to sex." Id. One then wonders, if such an ideal model already exists, why Madera calls for the "de-structuring of the secular marriage model, delegating to civil society the duty to create . . . the rules of alternative models . . . of post-marital settlement." Id. at 388.

She answers this question with the caveat that the "universalistic" approach implies a "homogenization of civil society into the values of the majority." Id. at 386. The obvious rejoinder is that some values, like gender equality, should be uniform throughout society. Notwithstanding this, Madera rightly notes that in any pluralistic society, civil law will be required "to satisfy community demands for the protection of religious needs." Madera, supra, at 387. This inevitably results in a jurisdictional conflict between secular and religious law. Id. The question, then, arises as to what degree a secular legal system, in which freedom of contract is a fundamental value, should interfere in the dissolution of a religious marriage in which one spouse has freely submitted to a marriage contract that restricts other universal values, such as gender equality.

Madera analyzes this question most directly in the context of Jewish law, where a contractual view of marriage prevails. Id. at 368. Unlike Catholic law where marriage is viewed as a sacrament and therefore privately indissoluble, the parties have broad exit freedom in Jewish marriages. Id. However, that is not to say that parity exists between the spouses. While a husband is permitted to unilaterally divorce his wife, her freedom to leave a valid marriage may be realized only with his consent -- with the release of the ghet (divorce paper). Id. This is a strictly observed obligation intrinsic to the ketubah (the Jewish marriage contract). Id. If the husband refuses to release the ghet, the wife acquires the status of agunah (a woman who is "chained" to her husband). Madera, supra, at 368. Thus, even though she may be abandoned by her husband, she cannot re-acquire free status and the attendant rights thereof, such as the right to re-marry or legitimize children. Id.

It is difficult to reconcile Madera's position that a secular legal system, under the justification of religious accommodation, should legitimize gender discrimination by enforcing such unconscionable terms. She circumvents this issue by arguing that a Western perspective distorts the significance of these issues, and she calls for a consideration of the historical and cultural setting in which they arise. Id. at 386. For instance, the mahr (male dowry), in pre-Islamic Arabia, was regarded as the price a man must pay in exchange for seducing and marrying a virgin. Id. at 382. This payment has now largely been deferred until after marriage, evolving under modern Islamic legislation into a type of "consolation gift" for the moral damage to women in the event of repudiation. Id. This, she argues, strengthens the woman's position in marriage by serving as a deterrent to repudiation and a means of persuasion in the event that she seeks a divorce, in which case she may relinquish her rights to the mahr. Id. Yet there is no getting around the fact that women's exit freedom under modern Islamic law is markedly less than that of men, even with the mahr. Secular legal systems that value equity above historicity should give no truck to religious dogma that perpetuates the institutionalized subjugation of women.

Madera's analysis of divorce under Catholic law reveals that the clash between secular and religious law goes beyond cultural differences, and instead underscores an intrinsic incompatibility. Nowhere is this more evident than in the doctrine of favor fidei (privilege of faith). Madera, supra, at 372. Marriage, it would seem, consists of two components: marriage ratum (mutual consent), which is regarded as "the union of the soul with God," and marriage consummatum (sexual intercourse), "the mystic union of Christ with his Church." Id. Under Catholic law, marriage is an "everlasting bond," or in other words, permanent, irrespective of the wills of the parties. Id.

Madera explains that, as one of two exceptions to the indissolubility of marriage, favor fidei "answers to the superior interest of the Church to protect salus animarum [eternal salvation of souls]." Id. Thus is revealed the fatal aberration with not only Catholic law, but in fact all religious law: at its core, it exchanges individual rights for the perpetuation of the supernatural claims on which it is founded. Such an unfair bargain cannot exist in a legal system founded on constitutional principles, not to mention a legal system that recognizes the fundamental contractual principle that contract terms that are unconscionable or contrary to public policy should not be enforced.

Ergo, at least in the United States, there are robust legislative and jurisprudential precedents that refute Madera's call to de-structure the secular marriage model in order to accommodate religious law. For example, the Uniform Premarital Agreement Act, currently codified by 27 states, allows parties to a premarital agreement to contract to an array of terms, including personal rights and obligations, but only if the terms are not unconscionable or contrary to public policy. See UNIF. PREMARITAL AGREEMENT ACT, ยงยง 3, 6 (2007). The inequitable conditions of divorce imposed on women by the religious traditions Madera discusses clearly violate both of these doctrines. Moreover, courts have ruled that the right to exercise one's religion is not immutable; it must yield when it infringes upon the rights of others. See Kendall v. Kendall, 687 N.E.2d 1228 (Mass. 1997) (holding that a father may not display religious imagery if not in the best interests of his child).

The current crisis over same-sex marriage illustrates the danger of heeding Madera's call to recognize religious law in secular legal systems. Because the state has historically bestowed upon religious leaders the authority to solemnize civil marriage, a civil union, even if it confers all of the same rights under the law as civil marriage, constitutes a separate and unequal alternative for same-sex couples due to the religious symbolism associated with marriage and the resultant social stigma resident with civil union. See Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010).

Had it left marriage solely to the realm of religion, perhaps the United States could have avoided the Gordian knot that is the same-sex marriage crisis today. Likewise, rather than risk further entanglement with intrinsically incompatible precepts as Madera urges, secular legal systems must not bend to accommodate religious laws antithetical to constitutional principles of equal opportunity and due process. Fortifying secular legal systems against such intrusions ensures that women will have the same rights as men upon dissolution of marriage, irrespective of their private religious beliefs.

Marcus Almond is a rising 4LE who will be graduating from Seton Hall University School of Law in January 2013. By day, Marcus is a legal researcher in drug and medical-device litigation for a plaintiff's firm in Manhattan. He will also be serving as a judicial intern on the Superior Court of New Jersey during the upcoming summer.

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This page contains a single entry from the blog posted on May 16, 2012 1:33 PM.

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