Can religious and secular courts exist in the same nation?

[Paul Finkelman]

it would make much more sense to follow the French rule (as well as that of many other countries) and have the state register the marriage and then let people do what they want with their faith.

----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

pfink at albanylaw.edu

www.paulfinkelman.com

--- On Fri, 11/21/08, Douglas Laycock <laycockd at umich.edu> wrote:

From: Douglas Laycock <laycockd at umich.edu>
Subject: Re: Can religious and secular courts exist in the same nation?
To: religionlaw at lists.ucla.edu, paul.finkelman at yahoo.com
Date: Friday, November 21, 2008, 2:30 AM


I have gradually come round to the view that state recognition of marriages performed by religious authority is problematic too, but not for the same reasons as divorce.  The marriage is consensual, and the choice of who is to perform the marriage is consensual; neither spouse is being coerced by government power.  But a contested divorce is not consensual, and if one spouse wants to be in religious court and the other wants to be in civil court, the choice of where to get it is not consensual.  The question is whether the state can use its coercive power to enforce one side's choice.

Quoting ArtSpitzer at aol.com:

> In a message dated 11/19/08 2:38:57 PM, laycockd at umich.edu writes:
>
>> ... 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. 
>>
> Why is it more problematic for the state to recognize a divorce decreed by a
> religious authority than it is for the state to recognize a marriage decreed
> by a religious authority?   (Not a rhetorical question.)
>
>
>
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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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