Document Type

Working Paper

Publication Date

9-17-2013

SSRN Discipline

*Humanities - Forthcoming Areas; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Womens & Gender Studies Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; AARN Subject Matter eJournals; Cognitive Science Network; Humanities Network; Political Science Network; Anthropology & Archaeology Research Network

Abstract

This short paper responds to a symposium article published by John Witte and Joel Nichols entitled Who Governs the Family Marriage as a New Test Case of Overlapping Jurisdictions 4 Faulkner L Rev 321 2013 Much of the response was motivated by a statement in an earlier draft of that paper suggesting that advocates of the use of sharia in marriage cases have given up on the state and want to become a law unto themselves I question that statement and also take the occasion to discuss the legal status of antisharia laws themselvesMy paper makes two basic points First although I am generally skeptical that equality is a sufficiently clean and clear principle to serve as the lodestar for all Religion Clause cases I do believe there are cases where equality does a good deal of useful work One such area is the legislative and judicial dispute over laws banning the judicial use of sharia in interpreting marriage contracts The Tenth Circuits decision in Awad v Ziriax in which it concluded that such a law violated the antidiscrimination principle offered in Larson v Valente shows that equality can be a powerful tool in such cases It also sheds light on two points that have not been made much in law and religion scholarship that Larsons antidiscrimination principle can serve valuable informationforcing purposes and that this principle can be profitably understood as a matter of political economy Second I argue that although there are some grounds for Wittes description of sharia advocates as having given up on the state that is a disturbing way to think of the issue and not a necessary one We need not think of religious arbitration panels and other mechanisms of religious law as an utter abandonment of law or the state Rather we can understand them as a challenge to what we mean by those terms Religious arbitration of choiceoflaw arrangements and religious institutional autonomy arguments more generally invite us to adopt a different view of what constitutes the law and perhaps a more skeptical view of the scope and dominance of the state

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