Can religious and secular courts exist in the same nation?

[Eric Rassbach]

One family law question: is divorce allowed by arbitration anywhere in the United States? The world?

It seems to me that the other difference between entering into a marriage and getting a divorce is that divorce might involve the interests of third parties-children, third-party contractors, etc.  I am quite ignorant of family law, prenuptial agreements, etc., but it seems like spouses could not enter into enforceable marriage contracts, subject to arbitration, regarding how, for example, child custody would be treated in the event of a divorce.  But perhaps these sorts of agreements exist?



From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, November 21, 2008 7:55 AM
To: Law & Religion issues for Law Academics
Subject: RE: Can religious and secular courts exist in the same nation?

    But doesn't the "one side's choice" characterization assume the conclusion that people's long-term contracts to engage in religious arbitration shouldn't count as a choice?  As Cohen v. Cowles Media makes clear, one can waive free speech rights, and I take it this can also be done some time in advance.  (Various kinds of nondisclosure agreements do this all the time.)  Nor does a political conversion excuse one from such a waiver, I take it.  Ordinary arbitration agreements generally waive jury trial rights, years in advance of the time when the jury trial is to take place.  Why wouldn't people be able to waive their rights not to have to go to religious court, when they expressly contractually agree to that?  They would still retain the right to change their faith -- just not to repudiate the promises they made before that change.

    Eugene

Doug Laycock writes:

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.
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