Multi-Tiered Marriage: Ideas and Influences from New York and Louisiana to the International Community
Nichols, Joel A., Vanderbilt Journal of Transnational Law
This Article contends that society in the United States needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction. Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end--both within and without the United States--which might serve as the framework for further discussions.
Within the United States, the relatively new covenant marriage statutes of Louisiana, Arizona, and Arkansas provide a form of two-tiered marriage and divorce law. But there is even an earlier, and potentially more profound, example in New York's get statutes. New York's laws derive from civil statutes that deal with specific problems raised by the intersection of civil law and Jewish law in marriage and divorce situations. New York's laws implicitly acknowledge that there are multiple understandings of the marital relationship already present among members of society. These examples from within the United States lay the groundwork for a heartier discussion of the proper role of the state and other groups with respect to marriage and divorce law.
As part of that discussion, the Article contends that the United States should look outward, to the practices of other countries. Several other nations--including India, Kenya, South Africa, and others--have ensconced multiple understandings of marriage in their own civil laws. That is, the state has (to varying degrees) ceded control and authority of marriage to other tribunals--or it has reified more than one understanding of marriage in its civil law. Such multiple understandings are generally predicated upon religious grounds. These other nations and their comparative practices could serve as predecessors for new understandings of a more robust pluralism at U.S. law.
TABLE OF CONTENTS I. INTRODUCTION II. A SELECTIVE HISTORY OF MARRIAGE AND DIVORCE LAW JURISDICTION III. DOMESTIC MOVEMENT TOWARD MULTI-TIERED MARRIAGE A. Covenant Marriage Laws (Louisiana, Arkansas, and Arizona) B. New York's Get Statutes 1. Jewish Law of Marriage and Divorce 2. Effect of Dual Systems of Marriage and Divorce 3. The Introduction of Get Statutes 4. New York's Laws as Precursors to Covenant Marriage Statutes IV. INTERNATIONAL MODELS A. India 1. Hinduism 2. Islam 3. Christianity 4. Parsi (Zoroastrianism) 5. Civil Marriage and Divorce B. Kenya 1. Civil Marriage/Divorce and Christianity 2. Islam 3. Hinduism 4. Customary Law C. South Africa 1. Civil/Christian Marriage 2. Customary Marriage 3. Muslim Marriage D. Other Examples V. CONCLUSION
The Supreme Court recently remarked: "Long ago we observed that 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the law of the States and not to the laws of the United States."' (1) The very way that this statement was made, in an off-hand way in a case otherwise quite notable for its challenge to the validity of the Pledge of Allegiance, underscores how very common our basic assumption is that marriage and divorce law is entirely and exclusively a state law matter. (2)
But even more basic than this federalism assumption are two further, usually unstated, assumptions about family law. The first is that the civil authority (generally the several states) is the sole relevant authority for matters relating to marriage and divorce. The second is that within state law there may only be one regulatory regime governing matters of marriage and divorce. …