An article in Sunday’s February 17, 2008 New York Times by Adam Liptak entitled ” When God and the Law Don’t Square ( entire article at http://www.nytimes.com/2008/02/17/weekinreview/17liptak. ) brought to mind many thoughts and lead to a long discussion between Mary and me. Britain’s Archbishop of Canterbury commented in a recent interview that “a Western legal system should make room for Shariah or Islamic law.” In particular, he seemed to be saying Shariah should apply to divorces. He seemed to single out divorce law and not other areas of the law. Why should it only apply to divorces? If it is good for divorces, shouldn’t it be good for all areas of the law including criminal and corporate?
The culture of origin of a couple has been an issue in many of the cases we have mediated. We point out to the couple that although they may have been married in another country, they are getting divorced in this country and must comply with the laws of the United States. The Archbishop seems to favor family law cases being resolved by religious courts if the parties agree. We have always liked that mediation allows for self determination but there must be some limits. The limits should include that the parties are treated fairly and that U.S. laws are not violated. We wonder whether allowing religious courts to adjudicate legal matters would lead to a chaotic patchwork of decisions and a fracturing of our society’s social contract.
We do not disagree that the parties should be able to make mutually agreed decisions about religious observance. For example, if the parties agree, we make provisions in our agreements that parties ‘will cooperate in obtaining a Jewish Divorce also known as a “Get” or an annulment but the parties have never agreed to allow the religious court to do more than grant the divorce or annulment. For more discussion, the article refers to a law review article by Robin Fretwell Wilson “The Overlooked Costs of Religious Deference”. Washington and Lee Law Review, Vol. 64, No. 4, 2007 http://ssrn.com/abstract=1028776 . As always, you can post a comment by following the directions at the right in the green column or at the bottom of this website. WM 2/18/08