Academic journal article Washington and Lee Law Review

The Overlooked Costs of Religious Deference

Academic journal article Washington and Lee Law Review

The Overlooked Costs of Religious Deference

Article excerpt

Table of Contents

I. Introduction................................................................................ 1364

II. Proposals for Religious Deference..............................................1366

III. Family Violence in Religious Communities............................... 1369

A. The Influence of Religious Participation............................. 1370

B. Tolerance by Religious Communities of Family Violence............................................................................... 1373

IV. The Practical Effects of Religious Deference............................. 1377

V. A Cautionary Tale of Deference.................................................1382

VI. Conclusion..................................................................................1383

I. Introduction

In March of 2007, Der Spiegel reported that a German divorce court judge denied a fast-track divorce based on hardship to a German citizen of Moroccan origin who had been the victim of domestic violence and death threats from her spurned husband.1 In rejecting the application, the judge relied on a passage in the Qur'an that she read as permitting a man to castigate his wife.2 The judge explained that the husband's exercise of his "right to castigate does not fulfill the hardship criteria," one of the grounds for an expedited divorce in Germany.3 A firestorm of controversy erupted in response to the ruling.4 Feminists read it as giving the husband the right to beat his wife.5 Muslim scholars disputed whether the Qur'an authorized physical violence against a spouse.6

When challenged on the ruling and asked to recuse herself, the judge again cited the Qur'an-this time citing a passage that savs that a man's honor is injured when his wife acts in an unchaste manner.7 Legislators across the spectrum then weighed in.8 One called the ruling "an extreme violation of the rule of law," while another labeled it a "sad example of how the conception of law from another legal and cultural environment is taken as the basis of our own notion of law."9

As this case unfolds, a vibrant movement is taking hold-both in the United States and outside it-to give greater deference to religious understandings of family relations.10 In the last year, numerous academics in the United States have proposed various schemes for sharing state control over domestic disputes with religious groups.11 This Article argues that the effect of these proposals would be to pull the state out of marriage. While the proposals focus largely on the theoretical desirability of pluralistic understandings of marriage, they overlook pragmatic concerns that arise: What happens to women and children in a system of religious deference?

This Article maintains that the state has an important protective function to play for traditionally vulnerable groups, a function that should not be lightly set aside. Binding women who want to exit a marriage to a religious community's norms-whether by enforcing religious contracts or ceding jurisdiction over marriage to religious authorities-will raise the costs of exiting, undermine a woman's ability to exit, and prevent her from privately regulating the conduct in her own relationship and with respect to her children.

Part II surveys three proposals that would give greater deference to religious understandings of marriage and family relations, ranging from proposals to share jurisdiction over family disputes with religious bodies to enforcing religious understandings like any other prenuptial agreement. Part III then marshals empirical evidence showing that domestic violence occurs in religious communities, like it does in other parts of society. This Part shows not only that violence will occur, but that religious leaders and community members frequently tolerate "wife-abuse" and other forms of domestic violence.12 This tolerance stems in part from the belief that "the marriage [must] be maintained"13 at all costs. …

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