ARTICLE: Witte and Nichols on Marriage and Overlapping Jurisdictions

John Witte and Joel A Nichols have published their 'Who governs the family?: Marriage as a Test Case of Overlapping Jurisdictions' on SSRN:

In many areas of law and society, religion and law exercise “overlapping jurisdictions.” Often such overlapping claims concern institutions that have both religious and political dimensions, such as education and schooling; charity and social welfare; and marriage and family life. It is the third of these mixed institutions – marriage and the family – that is the focus of this Essay. The headline battles today are over what forms of marriage should be recognized by the state: straight versus same sex marriage, contract versus covenant marriage, monogamous versus polygamous marriage, and more. But an emerging battle concerns not the forms of marriage, but the forums in which marriage and family cases are adjudicated. Specifically, the new battle is looming over the place of faith-based family laws and religious tribunals.

Such jurisdictional conflicts have recently resulted in a growing set of “anti-Shari’a law” statutes, first in Oklahoma and now in Kansas, South Dakota, and elsewhere. Such statutes are based on rather slender, if not specious, rationales – and on a purported study that has not been sufficiently assessed. We argue, contrary to this study, that the very few cases cited by proponents of anti-Shari’a statutes say far more about the use of ordinary principles of comity regarding the law of foreign nations, respect for the voluntary choices of individuals, and a sense of growing multiculturalism in general than they do about any sort of fanciful imposition of Shari'a law on unwitting parties. We oppose such anti-Shari'a laws for their targeted discrimination, their duplication of other laws and decisional norms, their potential conflict with the Federal Arbitration Act, and more.

But hard questions persist that cannot be easily swept away with a mere assertion that religious groups should enjoy autonomy over the marriage and family affairs of their voluntary faithful. Those are the questions that we have been probing and encouraging others to probe in this and prior writings: What are the appropriate lines between the civil state and religions with respect to marriage? Civil marriage and divorce are perhaps a least common denominator for all citizens, but can there be variations if accompanied by base level protections for women and children? And how can the state best protect vulnerable members and also advance its liberal ends? Such hard questions need not lead to a jurisdictional stand-off between law and religion, however, nor to a universal and over-reaching claim by the state. Instead, negotiation, compromise, and mutual respect may lead to more nuanced and achievable results – especially if we are careful not to be so distracted by conversations about the propriety of Shari'a that we miss the actual complications of the growing marital and legal pluralism in the United States. 

The article will be published in (2013) Faulkner Law Review.