Rethinking the Law, Not Abandoning It: A Comment on "Overlapping Jurisdictions"
Horwitz, Paul, Faulkner Law Review
In an extraordinary outpouring of work, John Witte and Joel Nichols have offered students of law and religion a careful, nuanced examination of the relationship between marriage, religion, and the law. (1) It is, Witte rightly notes, a close and complex relationship, in which marriage serves "as both a legal and a spiritual institution--subject at once to special state laws of contract and property, and to special religious canons and ceremonies." (2) For a variety of reasons--including the degree to which marriage has traditionally been woven into the legal framework of society without losing its religious roots, and the shift of marriage as a legal construct to a more privatized and contract-based status (3)--a close look at marriage and the law reveals just how complex the relationship between law and religion can be.
In their contribution to this Symposium, Witte and Nichols examine these questions through the lens of one particular issue: the place of shari'a, or Islamic law, within the broader Western legal framework, and specifically the relationship between Muslim family law and general marriage law. Despite their superficial plausibility, Witte argues, none of the standard arguments in favor of allowing some form of Muslim law to govern marriages in the West--"religious freedom, non-discrimination, political liberalism, and religious autonomy"--fully explains or justifies this result. (4) The issues raised in this area, he concluded, are deep and intractable. In the long run, these issues might be better addressed through the same complex process of negotiation, compromise, and mutual influence and accommodation that characterized, and continues to characterize, the relationship between mainline Christianity and the Western state over the past half-century, with respect to marriage as well as many other subjects. (5)
I do not disagree with this broad conclusion. As a descriptive matter, it seems true that the relationship between law and religion is just that: a relationship, one that is mutual and evolving and cannot be characterized with rigidity or finality. As a normative matter, I am also sympathetic to the view that no single value or argument is likely to succeed at providing a comprehensive "solution" to the problem of church-state relations. (6)
A symposium would be of little use without a little disagreement, however. So let me focus on a couple of areas--one narrow and one much broader--in which I depart from Witte's finely delivered views.
I deal with the narrower issue in the first part of this commentary. Despite my skepticism about "value monism" in law and religion, as a practical and doctrinal matter, sometimes a single value can actually be quite powerful in addressing a particular law and religion dispute. So it is with the shari'a debate. In an important recent case, Awad v. Ziriax, (7) the United States Court of Appeals for the Tenth Circuit upheld an injunction against the so-called "Save Our State Amendment," an Oklahoma state constitutional initiative "prevent[ing] Oklahoma state courts from considering or using Sharia law." (8) I argue that Awad represents one of those church-state disputes in which equality is a well-suited analytic tool. Equality, by itself, may not be a sufficient or even coherent tool for every circumstance. But it did appropriate work in this case.
More broadly, I want to voice my discomfort with the way in which Witte, in his initial take at the Symposium, framed the dispute between the state and adherents of the use of shari'a in Western marriage law. "Shari'a advocates," he asserted, "have given up on the state and its capacity to reform its laws of sexuality, marriage, and family life--and they want to become a law unto themselves." (9) This is a strong statement, (10) and a disquieting one--particularly in the United States, which is not much given to Islamic extremism and has been very successful on the whole in managing religious pluralism. …