Family Law And The Separation of Church and State

A few years ago in Canada there was big news when some government person proposed adding the Islamic "Sharia" law to the list of religious systems of law that can inform family court decisions.

At first I was, like, "Wait, what? Religious systems of law inform Canadian family court decisions? That wouldn't happen in the US; there we have separation of church and state."

Turns out the whole thing is really complicated, everywhere, as yesterday's Times story shows. And I'm wrong about the US. And I still don't really get what's going on.

From what I could understand in Canada, certain Jewish and Christian traditions govern some family court matters -- such as who gets divorced under what terms, and what happens to the children, and so on -- and it had long been the case that if the various participants in some conflict agree to have their case adjudicated in accordance with these traditions, then it is.

The proposal, then, was to allow Islam to join Judaism and Christianity in this. The emotional reaction this prompted was connected, not surprisingly, to the sense people had that adjudicating family court cases using Sharia law would be especially bad for women, who would end up worse off under that law than they would have under the regular, secular law.

I slowly grew to understand that in any case, the secular law "came first," in the sense that one had to give consent to have one's case considered this special way.

Having gotten this far, though, I got confused. I assume that any people who work out a plan for their arrangements to mutual satisfaction have the right, within various limits, to have that plan put into action. If a divorcing couple goes to a mediator, and agrees together on some division of goods, isn't the court willing to puts its seal of approval on their arrangement? How is it different that the arrangement to mutual satisfaction had a religious source?

The Times story quotes the Ontarian premier Dalton McGuinty saying in 2005, "There will be one law for all Ontarians." Canada ultimately decided that rather than add Islam to the list, they would take away all religious arbitration. But if secular law came first anyway, wasn't there already one law for Ontarians?

Like I said, I had assumed no-religious-arbitration was already the case in the US, but the Times explains that US courts use arbitration processes from all three of these religions. Indeed, a lawyer quoted in the Times says of one US case, “An agreement to arbitrate is an agreement to arbitrate," suggesting that there is little conceptual difference between religiously informed arbitration and non-religiously informed arbitration. If this is right, doesn't the single secular law still cover everyone the same way? How does the religion itself become relevant?

Of course, intuitively, the difficult issues concern the possibility of coercion. And while we might say that while there is the possibility of coercion in any case -- say, if a woman agrees to some arrangement because she's afraid of being beat up -- the possibility of coercion in the religious context does seem especially fraught.

This makes me see how the question of Sharia law in family court is an interesting and important one. But it still leaves me wondering, What exactly is the question? Because I don't know how "agreeing to religious arbitraration" is different from "presenting an mediated arrangement of mutual satisfaction."

Is the difference that in the first case one has to sign on before knowing the outcome? Is the difference that a person loses certain rights to appeal if they use religious arbitration that they don't lose if they present a mediated agreement? Is the difference that one must expliclity sign away certain rights -- and thus do so knowingly -- in the secular case, but may be misled in the religious case?

It seems to me that the crucial question lies in these technical details, but I don't know how the technical details work. More details please!