Legal News

When the Law of Religion Meets the Law of the State

By Dan Slater

As many news junkies know by now, on February 7 the Archbishop of Canterbury, Rowan Williams (pictured), fueled some serious controversy over a long-running debate in Britain: To what extent should Islamic law be accommodated in a society that’s now home to nearly 2 million Muslims? (Click for original reports from the FT, the Times of London, The Economist and the NYT.)

Here’s what happened: In an interview with the BBC, Dr. Williams — known as the spiritual leader of the world’s Anglican population — suggested that Britain should “constructively accommodate” certain aspects of Sharia law in areas such as commerical and family law. (Sharia is a body of Islamic law based on the Koran, the words and actions of the Prophet Mohammed, and rulings of Islamic scholars.) Doing so, he said, “seems unavoidable” to achieve social cohesion.

The Archbishop, who last year said that schools should refuse to teach creationism, clarified that he was not advocating the criminal punishments issued in some Muslim communities where alleged violations of Sharia are sometimes dealt with by stoning and beheading.

On Sunday, the NYT’s Adam Liptak offered some U.S. context to the debate. In the “Ideas & Trends” column, Liptak gave several examples of U.S. courts deferring to religious tribunals — Islamic, Christian and Jewish. In 2003, a Texas appeals court reportedly referred a divorce case to a tribunal called the Texas Islamic Court; in 2005, a federal appeals court in New Orleans affirmed an award in an employment arbitration by the Institute for Christian Conciliation; and, it’s common, reports Liptak, for state courts to enforce the decision of Jewish courts, known as a bet dins.

Whether government courts should ever defer to religious ones, writes Liptak, is a question whose answer depends on whether the parties consented to religious adjudication, whether they’re allowed to change their minds and whether the decisions of those tribunals are offensive to fundamental conceptions of justice. “The hard questions, as the archbishop learned, arise in the area of family law,” says Liptak, “where the agreement to arbitrate may be uninformed or obtained by duress.”

One law professor told Liptak that government courts should refuse to enforce any ruling from a religious tribunal that leaves a woman worse off than she would have been in a conventional divorce. “Society has a stake in the outcome,” said Washington & Lee’s Robin Fretwell Wilson. “Some religions are tilted against women.”

LB Tangential Commentary of the Day: Admittedly, even when faced with mega-issues like these, the Law Blog can get bogged down in the details. But we’re fascinated by the Archbishop’s official title, the “Most Reverend Rowan Williams.” If any Anglican scholars among the LB readership can clue us in on where this rather pleasing formulation — “the Most” — comes from, we’d be much obliged.

Full post as published by Law Blog - WSJ.com on February 19, 2008 (boomark / email).