Speaking of Emory Scholars

John Witte grounds the storm over Archbishop Rowan William’s recent comments (about the role of sharia in Britain) in appropriate history. Witte is one of the strongest scholars of law and religion in the West and on occasion announces positions on major issue of the day. In no way is he a “liberal multicultural accommodationist” though he ultimately concludes:

Granting Muslims and others equal treatment in these cases does seem “unavoidable” if the parties have freely consented to this method of dispute resolution. To deny Muslims divorce arbitration while granting it to Jews and Christians is patently discriminatory.

After a short exploration of the battle between religious school and state schools, we are told:

Th[e] compromise on religion and education, forged painfully over a half-century of wrangling, has some bearing on questions of religion and marriage. Marriage, like education, is not a state monopoly. Religious parties have always had the right to marry in a religious sanctuary or before a state official. Religious officials have long had the right to participate in the weddings, annulments, divorces and custody battles of their voluntary members.

State rules remain.  But the state has also long set the threshold requirements of what marriage is and who may participate. Religious officials may add to these state law requirements but not subtract from them. A minister may insist on premarital counseling before a wedding, even if the state will marry a couple without it. But if a minister bullies a minor to marry out of religious duty, the state could throw him in jail. A rabbi may encourage a bickering couple to repent and reconcile, but she cannot prevent them from filing for divorce. An imam may preach of the beauties of polygamy, but if he knowingly presides over a polygamous union, he is an accessory to crime.

If religious tribunals get more involved in marriage and family law, states will need to build on these precedents and set threshold requirements in the form of a license. Among the most important license rules: no polygamy, child marriages or other forms of marital union not recognized by the state. No compelled marriages or coerced conversions before weddings that violate elementary freedoms of contract and conscience. No threats or violations of life and limb, or provocations of the same. No discrimination against women or children. No violation of basic rules of procedural fairness, and more.

Religious tribunals may add to these requirements but not subtract from them. Those who fail to conform will lose their licenses and will find little sympathy when they raise religious liberty objections.

Yes, there will be sharia in America, though only for those who adopt it, and the secular courts exists as a source of freedom from its abuses in a way that does not exist in the Muslim world.

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