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Faith-Based Family Laws in Western Democracies?

Fides et Libertas: The Journal of the International Religious Liberty Association, pp. 119-132, 2010

U of St. Thomas Legal Studies Research Paper No. 11-09

Emory Public Law Research Paper No. 11-160

14 Pages Posted: 11 Apr 2011 Last revised: 11 Jan 2017

John Witte Jr.

Emory University School of Law

Joel A. Nichols

University of St. Thomas School of Law (MN)

Date Written: 2010

Abstract

Anglican Archbishop Rowan Williams set off an international firestorm on February 7, 2008 by suggesting that some “accommodation” of Muslim family law was “unavoidable” in England. His critics charged that England will be beset by “licensed polygamy,” barbaric procedures, and brutal violence against women if official sanction is given to shari’a courts. Case closed.

This case won’t stay closed for long, however. The Archbishop was not calling for the establishment of a parallel system of independent Muslim courts in England, and certainly not the direct enforcement of shari’a by English civil courts. He was, instead, raising a whole series of hard but “unavoidable” questions about marital, cultural, and religious identity and practice in Western democratic societies committed to human rights for all.

This Essay discusses those hard questions, with a particular emphasis on Muslim communities and family law. It briefly reviews the history of the law of marriage and religion in the West, including many changes in the last half century. The Essay details responses to such recent changes, especially responses that call for some recognition or enforcement of religious law. The last section of the Essay suggests ways forward by comparing claims for accommodation for Muslim family law to earlier accommodation claims by Jewish communities, and by drawing analogies to compromises between the civil state and religion regarding education.

Keywords: family law, marriage, law of marriage, law and religion, sharia, Islamic law, faith and marriage

Suggested Citation

Witte, John and Nichols, Joel A., Faith-Based Family Laws in Western Democracies? (2010). Fides et Libertas: The Journal of the International Religious Liberty Association, pp. 119-132, 2010; U of St. Thomas Legal Studies Research Paper No. 11-09; Emory Public Law Research Paper No. 11-160. Available at SSRN: https://ssrn.com/abstract=1805304

John Witte Jr. (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-6980 (Phone)
404-712-8605 (Fax)

Joel A. Nichols

University of St. Thomas School of Law (MN) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4827 (Phone)

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