The Overlooked Costs of Religious Deference
35 Pages Posted: 9 Nov 2007
Citing the Qur'an, a German divorce court judge this year denied a fast-track divorce to a Muslim woman who had been the victim of domestic violence and death threats from her husband. The judge rejected her application because the husband's exercise of his "right to castigate does not fulfill the hardship criteria" for an expedited divorce. The decision, which sparked a firestorm of controversy, comes at an important time in the movement to embrace pluralistic understandings of family relationships. Scholars and policymakers around the world are advancing various schemes for sharing state control over domestic disputes with religious groups - ranging from proposals to share jurisdiction over family disputes with religious bodies to enforcing religious understandings, like any other prenuptial agreement.
This Article asks how women and children will fare in a system of religious deference. It maintains that the state has an important protective function to play for these traditionally vulnerable groups. Enforcing certain religious understandings of marital relationships will likely undermine a woman's ability to exit the relationship and, consequently, prevent her from policing the conduct in her own relationship and with respect to her children. Policymakers should proceed cautiously with any proposal to hand over authority for marital disputes since family violence occurs in religious communities, as it does throughout society, but is tolerated by some religious leaders and adherents. Drawing on our experience with faith-based exemptions to the duty to provide medical care for children, this Article concludes that the costs of giving greater deference to religious understandings of family relationships must seriously be considered before we are willing to rob women and children of the state's protections.
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