Religion, Women, and the Holy Grail of Legal Pluralism

57 Pages Posted: 7 Sep 2013

Date Written: September 5, 2013

Abstract

This article investigates how much space should be provided to religious minorities to govern themselves without jeopardizing access to civil courts to resolve potential disagreements. The importance of this inquiry lies in the growing urgency with which religious institutions and communities in the United States are aggressively pushing for greater autonomy, both through a broad reading of constitutional protections under the Religion Clause of the First Amendment and the dramatic growth of religious arbitration forums, which they argue should operate free of civil oversight.

I propose that unfettered religious autonomy, due to compulsory deference to religious arbitration and the courts’ refusal to adjudicate religious disputes on constitutional grounds, could violate the fundamental rights of individual group members and substantially impact important public interests. The article undertakes an uncommonly panoramic look at what full religious autonomy may entail and addresses two main concerns: first, whether civil courts have any meaningful authority under the Religion Clause of the Constitution to resolve religious disputes; and second, under what circumstances would it be appropriate for the judiciary to defer to the holdings of religious arbitral forums. Since the reach for legal pluralism is often expressed in the area of family law where the ideal of religious autonomy may come into conflict with the goal of gender equality, the article examines the issues of judicial authority to review religious disputes, as well as deference to religious arbitration, through the prism of a diverse selection of Jewish and Islamic divorce cases.

I demonstrate that within the context of religious divorce cases, courts do, indeed, have the authority to review religious disputes pursuant to the Supreme Court’s neutral principles approach. Furthermore, I propose that deference to religious arbitration is only appropriate when there is convergence, (which may be said to exist when comparable sets of religious and secular rules are rooted in concepts of equity), between the standards underlying the applicable secular and religious laws. Finally, I suggest that in addition to protecting the fundamental rights of individual group members (including women), correctly mapping the boundaries of judicial authority over religious forums — in order for litigants’ access to the civil courts to be maintained — may serve as the best method for reassuring skeptics and, thereby, advancing a secure, long-term role for religious arbitration.

Suggested Citation

Falsafi, Shiva, Religion, Women, and the Holy Grail of Legal Pluralism (September 5, 2013). Cardozo Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2321390

Shiva Falsafi (Contact Author)

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405 Hilgard Avenue
Box 951361
Los Angeles, CA 90095
United States

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