Can religious and secular courts exist in the same nation?

[James Maule]

I have heard two anecdotes, but know of no reported decision, involving a similar situation in Roman Catholic canon law proceedings for an annulment. The pattern was the same. A Roman Catholic marries a non-Catholic in a Roman Catholic ceremony, with appropriate dispensation (which includes agreements by the non-Catholic in terms of raising children Catholic, not interfering with the Catholic spouse's exercise of her religion, etc.) Later, when the marriage falls apart, the couple divorces under civil law. At about the same time, the Roman Catholic ex-spouse also seeks an annulment in order to marry again in the church. The non-Roman Catholic spouse refuses to participate, making it more difficult or even impossible for the Roman Catholic spouse to make the case for an annulment. In one instance, I was told by the person telling me one of the anecdotes that the civil court declined to order the non-Roman Catholic spouse to make an appearance in the annulment proceedings. I don't know how the story ended because it was told to me while it was underway and I never followed up. In the other anecdote I don't think the proceedings had moved along to that point.

Anyhow, would it be wrong to think that somewhere, in some state, this version of the question was litigated and became the subject of a reported decision? It strikes me as a not uncommon occurrence, that is, surely the response rate of the non-Catholic spouse in these instances isn't 100 percent.

Jim Maule

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, November 20, 2008 9:27 AM
To: religionlaw at lists.ucla.edu; laycockd at umich.edu
Subject: RE: Can religious and secular courts exist in the same nation?

Here is a possible example that supports Doug`s position.  There was a case in Illinois some years ago in which a Jewish couple married at an Orthodox synagogue (where the wife`s father attended) but niether was orthodox.  The wife then became orthodox and the changing religious values led to divorce.  She demanded a "Get" (a Jewish divorce) from the Orthodox Bet Din, arguing that their orthodox kettubah (Jewish Marraige Contract which is written in Aramaic which neither husband nor wife could read or understand) required that he give her the Get; he refused, arguing that he did not beleive in Orthodox Jewish rules and so would not participate.  An Illinois Court ordered him to give her the Orthodox Get.  I think the Illinois Court was totally wrong in doing this and that the Kettuhbah does not require that he give her a Get. (I am not in the US now and cannot locate the case, but it is cited in this article: Finkelman, A Bad Marriage:  Jewish Divorce and the First Amendment!

 , 2 Cardozo Women's Law Journal 131-72 (1995).) But, imagine if he had converted to another faith altogether?  Become a Baptist or Catholic? Could the court order him to go to a Rabbinical Court to participate in a religious/legal ceremony process?

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386
pfink at albanylaw.edu
>>> Douglas Laycock <laycockd at umich.edu> 11/19/08 2:37 PM >>>


This argument that voluntary submission to religious courts is like voluntary submission to arbitration has a lot of force.  And it can be carried a step further:  arguably it discrimiantes against religion if agreements to secular arbitration are enforceable and agreements to religious arbitration are not.

As against the discrimination argument, there is the response that secular arbitrators at least purport to be enforcing the law of the land (even though they often create ad hoc compromises in practice); religious courts make no pretense of enforcing secular law.  I'm not sure how far that carries.

The more serious argument against civil enforcement of judgments of religious courts is that the right to change one's religion is fundamental to free exericse.  If I sign a commercial arbitration agreement at time 1, and object to arbitration at time 2, when a dispute has actually arisen, I am out of luck.  But if I agree to submit to a religious court at time 1 (say, when I get married), and I object to the religious court at time 2, when a dispute has actually arisen, I may have abandoned the faith in the meantime; I have at the very least changed my view of religious courts.  If government holds me to my time 1 agreement, government is preventing me from changing my religion.

This is not a problem if both parties agree, after the dispute has arisen, to go to the religious court, and if both parties abide by the judgment.  That is just a mechanism for voluntary dispute resolution; the government is not involved.  But even in this situation, if the religious court grants a divorce that the state recognizes, we have gone beyond voluntary dispute resolution.

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>     I'm inclined to say that this is exactly right.  In fact, the
> Court's church property and church government cases suggest that
> religious arbitration is the only permissible mode for resolving those
> cases that require interpretation of religious doctrine.  And U.S. law
> has certainly coexisted for decades, if not longer, with religious
> arbitration by Beth Dins, Christian arbitration bodies, and a smaller
> number of Islamic arbitration bodies.
>
>     I was curious, though, about two related questions:  (1)  Does
> Jewish, Muslim, or Christian religious law, as interpreted by at least
> some prominent arbitral bodies, set up rules that are either
> substantively (e.g., men are favored over women in divorce settlements,
> or vice versa) or procedurally (e.g., male witnesses are treated as more
> credible than female witnesses, or religiously orthodox witnesses are
> treated as more credible than apostate witnesses) discriminatory based
> on sex, religion, or ethnicity?  (2)  Is there a generally applicable
> principle of arbitration law (both religious and secular) that declares
> arbitration awards to be against public policy if they are based on
> similarly discriminatory rules?
>
>     It may well be that we shouldn't have such a generally applicable
> principle of arbitration law, because parties should be free to waive
> their nondiscrimination rights, at least in certain kinds of contexts.
> But if there such a generally applicable principle, and some religious
> arbitral decisions do indeed tend to involve the application of
> discriminatory rules, then presumably those decisions would be
> unenforceable unless some religious exemption is granted from the
> arbitration law principle.
>
>     Eugene
>
> Vance Koven writes:
>
>
>         We've discussed this a bit on the list before, but I don't see
> why in principle religious courts should not be treated pretty much as
> commercial arbitration is: as a consensual alternative to the state
> legal system (with enforcement permissible through the national courts
> where required). In all such cases, the national legal system provides
> an umbrella of protections, including among other things the necessity
> for consent and honesty in obtaining the agreement by which the parties
> submit to the alternative jurisdiction.
>
>         It should not be an objection in most instances that the
> substantive rights of the parties differ from the norms of the secular
> courts. There are very few rights, even constitutional ones, the
> exercise of which in particular circumstances cannot be waived. For
> example, people waive their free speech rights in private contexts all
> the time (think of non-disparagement clauses and even confidentiality
> agreements, including those attached to litigation settlement
> agreements); they waive statutory rights such as nondiscrimination
> rights and antitrust rights; and so on. Some things cannot be waived,
> such as one's right to be free as opposed to enslaved, but of course
> this is understood to be a matter of the perpetuity of the
> arrangement--any employment agreement restricts one's freedom of action
> to an extent--and the mechanism for enforcement (prohibition of contrary
> employment rather than specific performance). One also is restricted in
> waiving rights of third parties (e.g. one's children), which might
> create some issues under religious law. Still, the general principle
> ought to be that as to the consenting party an agreement to refer most
> matters to religious courts ought to be upheld and enforced by the
> secular courts.
>
>         I frankly don't see what Matthew or Luke (or Mark or John, for
> that matter) have to say on the matters quoted below have to do with the
> subject.
>
>         Vance
>
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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