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Faith in law?
Diffusing tensions between diversity
and equality
Abstract This article evaluates demands for privatized diversity that desta-
bilize traditional notions of separation of state and religion, by asking secular
authorities to adopt a hands-off, non-interventionist approach, placing civil
and family disputes with a religious or cultural aspect beyond the official
realm of equal citizenship. This potential storm to come must be addressed
head on because it mixes three inflammatory components in today’s politi-
cal environment: religion; gender; and the rise of a neo-liberal state. The
volatility of these issues is undisputed; they require a mere spark to ignite.
The standard legal response to this challenge is to seek shelter behind a for-
midable ‘wall of separation’ between state and religion, even if this implies
turning a blind eye to the concerns of religious women – especially those
caught in the uncoordinated web of secular and religious marriage bonds. I
will advance a different approach. By placing these once-ignored agents at
the centre of analysis, this article explores the idea of permitting a degree of
regulated interaction between religious and secular sources of identity and
obligation, so long as the baseline of citizenship-guaranteed rights remains
firmly in place.
Key words gender · identity · neo-liberalism · privatized diversity ·
religious jurisdiction · religious minorities · secular jurisdiction
How should a democratic state and its public law system respond to
claims by members of religious minorities seeking to establish private
faith-based arbitration tribunals to resolve family disputes? Classic liber-
als and civic republicans would have had a quick response to such a query.
They favoured a strict separation between state and religion, as part of
their support for drawing a plain and clean line between the public and
private spheres. Be a citizen in public, a Jew (or a Catholic or a Muslim,
and so on) in private, remains the favoured mantra, dating back to as
Privatized diversity
Any new path requires a delicate balance. On the one hand, it demands
vigilance to address the serious communal pressures that make ‘free
consent’ to arbitration a code name for thinly veiled coercion. On the
other hand, it requires avoidance of any hasty conclusion that the answer
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Philosophy & Social Criticism 36 (3–4)
to such complex legal and identity challenges lies in turning a blind
eye to the severe implications of the split-status problem confronting
women who wish to maintain good standing both in their religious and
in their non-religious communities. A number of alternative ideal-type
responses present themselves. I will discuss just two promising alterna-
tives: democratic deliberation and intercultural dialogue in civil society;
and changing the background conditions that influence such intra- and
inter-cultural negotiations.8
The democratic deliberation path emphasizes the importance of
dialogue in civil society and involves formal and informal intercultural
exchanges. This route permits revealing the internal diversity of opinions
and interpretations of the religious and secular family law traditions in
question. Deliberation and contestation can also promote agency and
direct empowerment through political participation and social mobil-
ization.
While I fully endorse and support these civil society avenues, some-
thing else might be required in terms of institutional design to address
situations of negotiation breakdown, imbalance of power, and restora-
tion or establishment of rights. That ‘something else’ translates into a
focus on legal-institutional remedies that respond to the fact that erosion
of women’s freedom and autonomy is increasingly the ‘collateral damage’
of charged state–religious ‘showdowns’. To avert this disturbing result,
I will briefly explore how, despite the fact that the strict-separation
approach still remains the standard or default response, courts and legis-
latures have recently broken new ground by adopting what we might
refer to as ‘intersectionist’ or ‘joint governance’ remedies.
One example is the case I mentioned earlier, Bruker v Marcovitz,9
in which the Canadian Supreme Court explicitly rejected the simplistic
‘your culture or your rights’ formula. Instead, it ruled in favour of ‘[r]
ecognizing the enforceability by civil courts of agreements to discourage
religious barriers to remarriage, addressing the gender discrimination
those barriers may represent and alleviat[ing] the effects they may have
on extracting unfair concessions in a civil divorce’.10 In the Marcovitz
case, a Jewish husband made a promise to remove barriers to religious
remarriage in a negotiated, settled agreement, which was incorporated
into the final divorce decree between the parties. He said he would
give his wife a get, a bill of divorcement. This contractual obligation
thus became part of the terms that enabled the civil divorce to proceed.
Once the husband had the secular divorce in hand, however, he failed
to honour the signed agreement to remove the religious barriers to his
wife’s remarriage, claiming that he had undertaken a moral rather than
legal obligation. The Supreme Court was not in a position to order speci-
fic performance (forcing the husband to grant a get); instead, the court
ordered the husband to pay monetary damages for breach of the con-
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Shachar: Faith in law?
tractual promise, a breach that had harmed the wife personally and the
public interest generally. What Marcovitz demonstrates is the possibility
of employing a standard legal remedy (damages for breach of contract,
in this example) in response to specifically gendered harms that arise out
of the intersection between multiple sources of authority and identity –
religious and secular – in the actual lives of women.
The significance of the Marcovitz decision lies in its recognition that
both the secular and religious aspects of divorce matter greatly to observ-
ant women if they are to enjoy gender equality, articulate their religious
identity, enter new families after divorce, or rely on contractual ordering
just like any other citizen. This joint-governance framework offers us a
vision in which the secular law may be invoked to provide remedies for
religious women to protect them from husbands who might otherwise
‘cherry-pick’ their religious and secular obligations. This is a clear rejec-
tion of a punishing ‘either/or’ approach, and instead it offers a more
nuanced and context-sensitive analysis that begins from the ‘ground up’.
It identifies who is harmed and why, and then proceeds to find a remedy
that matches, as much as possible, the need to recognize the (indirect)
intersection of law and religion that contributed to the creation of the
very harm for which legal recourse is now sought.
Regulated interaction
The last set of issues that I wish to address relates to the thorny challenge
of tackling the potential conflict between secular and religious norms
governing family disputes. The fear that religious law represented a rival
normative system that resisted and challenged the paramount consti-
tutional principle of the rule of law clearly played a significant part in
the anxiety surrounding the Shari’a tribunal debate in Canada.11 Given
the deference typically afforded to out-of-court arbitration procedures,
critics of the proposal charged that nothing less than an attempt to use
a technique of privatized diversity to redefine the relationship between
state and religion was under way. This posed an existential threat that no
secular state authority was likely to accept with indifference – not even
in tolerant, multicultural Canada. And so, after much contemplation,
the chosen response to the challenge was to quash the proposed tribu-
nal with all the legal force the authorities could muster.12 This took the
shape of an absolutist solution: prohibiting by decree the operation of
any religious arbitration process in the family law arena. This response,
which relies on imposition by state fiat, sends a strong symbolic message
of unity, although it is a unity achieved by prohibition instead of dia-
logue. This universal ban effectively shuts down, rather than encourages,
coordination between civil and religious authorities.
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Philosophy & Social Criticism 36 (3–4)
A less heavy-handed approach might have been worth exploring,
especially once the idea of granting unrestricted immunity in the name
of religious freedom to any kind of dispute resolution forum is rejected.
The alternatives include a range of options that permit a mixture of ex
ante and ex post regulatory oversight in the service of human rights pro-
tections, mandatory provisions that no party is permitted to waive, and
enhanced access to whatever public-sponsored resources are normally
available to anyone facing a family breakdown. Regulated interaction
envisions a new way of allocating and sharing jurisdiction between states
and religious minorities.
The major insight here is that today’s most contested social arenas –
family law, education, criminal justice, and immigration, to mention but
a few key examples – are internally divisible into parts or ‘sub-matters’:
multiple, separable yet complementary, legal components. Existing legal
and normative models rarely recognize that most contested social arenas
encompass multiple functions, or diverse sub-matters. Rather, they
operate on the misguided assumption that each social arena is internally
indivisible and thus should be under the full and exclusive jurisdiction of
one authority, either the state or faith community. On this account, there
is always a winner and a loser in the jurisdictional contest between state
and religion. But if power can be divided into sub-matters within a single
social activity, it becomes possible to have a more creative, nuanced and
context-sensitive basis for coordination.13
Take marriage. Here at least two sub-matters should be identified.
There is a demarcating function mentioned earlier, which regulates, among
other things, the change of one’s marital status or one’s entitlement to
membership in a given community. And then there is a distributing func-
tion, which covers, among other things, the definition of the rights and
obligations of married spouses, together with a determination, in the
event of divorce or death, of the property and economic consequences
of this change in marital status. These demarcation and distributive sub-
matters parallel the two key legal aspects of marriage and divorce rules:
status and property relations. This division permits ample room for legal
creativity. Recent studies have shown, for example, that Muslim women
in Britain have turned to non-state institutions in order to gain a religious-
authorized release from a dead marriage, one that, in certain cases, no
longer legally existed because a state divorce decree had already been
granted.14 For these women, the religious councils were performing the
crucial communal demarcating function of removing religious barriers to
remarriage. These ‘end users’ were seeking specialized religious-oriented
divorce services that the secular state is, by definition, barred from supply-
ing. At the same time, the women who turned to these local, faith-based
councils expressed no interest in (and indeed, some explicitly rejected)
the idea of delegating control over the distributive components of their
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Shachar: Faith in law?
fractured marriage. They did not want their post-divorce property rela-
tions (controlling matters such as the rights and obligations owed by
each former spouse to the other, to the children, if any, and to various
third parties) determined by these non-state institutions.15 Such division
of responsibility fits well with the idea of sub-matter jurisdictions. It
rejects transferring the ‘full docket’ or ‘package’ to privatized-diversity
entities and, instead, demands that some degree of coordination occur
between religious and civil institutions in any initial allocation of shared
responsibility and its subsequent implementation.16
In addition to the recommended division of authority according to
component functions, the literature on institutional design distinguishes
between different forms or techniques of oversight. The classic approach
envisages minimal oversight: the rationale here is that the consenting
parties intentionally removed their dispute from the public system, pre-
ferring instead an out-of-court process. In the case of severe breaches of
procedural or substantive justice, however, laws governing alternative
dispute resolution routinely permit the arbitrating parties to seek judicial
review.17 This is characterized in the literature as the ‘fire alarm’ response
(a decentralized and ex post review initiated by individual complain-
ants or public interest groups) as opposed to ‘police control’ (a more
centralized, governmental ex ante mode of oversight.18 These combined
protections are designed to assist individuals by reducing information
asymmetries and power imbalances, as well as providing a check on
the exercise of authority by arbitrators or any other independent third-
party decision-makers.19 However, just like any other legal measure that
respects individual choice, they may fall short of providing a full guaran-
tee that no communal (or other) pressure was imposed on those utilizing
an alternative dispute-resolution forum. To address these real concerns,
any principled scheme of regulation must also include a robust commit-
ment to ensure that women are not dispossessed of whatever equal rights
and protections they have as citizens when they raise a legal claim that
incorporates the religious dimension as well. The possibility of imple-
menting precisely such an ‘intersectionist’ commitment was exemplified
by the Marcovitz ruling.
With these conditions firmly in place, we can appreciate the dyna-
mism and behaviour-alteration potential of the regulated interaction
approach. For instance, communal decision-makers (ideally trained in
both civil and religious law) have the opportunity to enjoy the benefits
of state recognition of their decisions – including the coveted public
enforcement of their awards – when dissolving a religious marriage in
accordance with the tenets of the relevant faith. The state retains the
power to issue a civil divorce and to define the thresholds or default rules
in matters such as the post-divorce distribution of matrimonial and other
property, matters that inevitably concern all citizens facing a marriage
408
Philosophy & Social Criticism 36 (3–4)
breakdown. These safeguards typically establish a minimal baseline or
‘floor’ of protection, above which significant room for variation is per-
mitted. These protections were designed, in the first place, to address
concerns about power and gender inequities in family relations – con-
cerns that are not absent from religious communities either. If anything,
these concerns probably apply with equal force in the religious context
as in the individualized, secular case.
This then is the regulated interaction model, one that offers an alter-
native to the ‘top-down’ prohibition model that was eventually chosen
by the government in the Canadian debate. Provided the resolution by a
non-state ‘arbitration’ body falls within the reasonable margin of discre-
tion permitted a family-law judge or secular arbitrator, there is no reason
to discriminate against that tribunal solely for the reason that it was
guided by, and applied, religious norms and principles. The operative
assumption here is that, in a diverse society, we can safely assume that
at least some individuals might wish to turn to their ‘communal’ institu-
tions, knowing that their basic state-backed rights are still protected by
these alternative fora.
Under these conditions, the option of turning to a regulated non-state
tribunal may, perhaps paradoxically, nourish the development of a more
dynamic, context-sensitive and moderate interpretation of the faith tradi-
tion. Why? Because it may transform the standing of non-state sources
of authority from the realm of unofficial, non-binding advice to that of
potentially compelling decisions over consenting parties. The proviso
that comes with such revamped jurisdictional authority is that actors
cannot breach the basic protections to which each woman is entitled by
virtue of her equal citizenship status. If they ignore these entitlements,
religious authorities risk depriving themselves of the ability to provide
relevant legal services to the very members of the community they most
dearly care about. If they wish to see their faith community survive (and
indeed, flourish), and if they wish to continue to define who belongs
within the faith community’s membership boundaries, these basic pro-
tections cannot be spurned.20
As we have seen earlier, religious marriage and divorce rules play a
crucial role in fulfilling this identity-demarcating function. The obligation
to comply with minimal standards defined by the larger community in
governing the distributive obligations between the separated or divorced
parties (and toward relevant third parties) does not have to cripple the
new-found authority gained by the religious community and its tribunals.
They may maintain their identity through control over the demarcating
aspect of marriage and divorce (for those members who desire such an
affiliation). By ensuring that incidents of ‘split status’ are reduced within
a diverse plural society (one that retains the option of secular divorce),
both the community at large and the specific women involved benefit
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Shachar: Faith in law?
by having all barriers to remarriage removed in a conclusive and non-
ambivalent manner. Such processes could plant the seeds for meaningful
reform that falls within the interpretative margins and methodologies for
innovation permitted by the religious tradition and improves women’s
bargaining position and rights protection. This creates an alignment of
interests between the group, the state and the individuals at risk. In this
fashion, regulated interaction can address the multiple aspects of mar-
riage and its breakdown, generating conditions that permit an effective,
non-coercive encouragement of more egalitarian and reformist changes
from within the tradition itself.
The state system, too, is transformed from strict separation by
regulated interaction. It is no longer permitted to categorically relegate
competing sources of authority to the realm of unofficial, exotic, if not
outright dangerous, ‘non-law’. The regulated interaction approach dis-
courages an underworld of unregulated religious tribunals. It offers a
path to transcend the ‘either/or’ choice between culture and rights, family
and state, citizenship and islands of ‘privatized diversity’.
Conclusion
PSC
Notes
1 In addressing these weighty issues, my departure point is a deep commit-
ment toward respecting women’s identity and membership interests, as well
as promoting their equality both within and across communities. I am also
guided by an understanding of culture and religion as amenable to change
and open to a plurality of interpretations.
2 The term ‘citizenship rights’ here applies to anyone who resides on the terri-
tory, regardless of her or his formal membership status.
3 [2007] 3 SCR 607.
4 Even in France, which does not permit entry into marriage through the reli-
gious route (only a civil marriage is visible to the eyes of the state), we find
growing attention paid to the effects of religious marriage and divorce on
women. The concern is this: if the parties have not married in a civil fashion
but have entered a ‘halâl marriage’ in France, the state will not recognize the
religious marriage and therefore cannot provide a divorce. Because there are
no religious institutions to turn to, the wife can then remain trapped in an
unsuccessful marriage, without an ability to free herself. See J. R. Bowen, Can
Islam Be French? Pluralism and Pragmatism in a Secularist State (Princeton,
NJ: Princeton University Press, 2009), pp. 158–78.
5 Related legal dilemmas can also arise for Roman Catholic couples in the
context of a civil divorce. In certain cases, the Catholic Church has nullified
the religious marriage bond so as to avoid the split-status situation.
6 For a critical discussion of the exit option, see S. M. Okin, ‘“Mistresses of
Their Own Destiny”: Group Rights, Gender and Realistic Rights of Exit’,
Ethics 112 (January 2002): 205–30; A. Phillips, Multiculturalism Without
Culture (Princeton, NJ and Oxford: Princeton University Press, 2007),
pp. 133–57.
7 Similar misconceptions are traced in England as well: Lucy Carroll, ‘Muslim
Women and “Islamic Divorce” in England’, Journal of Muslim Minority
Affairs 17 (1997): 97–115.
8 This categorization fits well with Seyla Benhabib’s ‘dual track’ approach: S.
Benhabib, The Claims of Culture: Equality and Diversity in the Global Age
411
Shachar: Faith in law?
(Princeton, NJ and Oxford: Princeton University Press, 2002), pp. 130–2. A
similar distinction between the ‘legal track’ and ‘citizen track’ is found in a
major report recently published in Quebec about the boundaries of reason-
able accommodation: G. Bouchard and C. Taylor, Building the Future: A
Time for Reconciliation, report (Quebec: Commission de Consultation sur
les Pratiques d’Accommodement reliées aux Différences Culturelles, 2008).
9 [2007] 3 SCR 607.
10 ibid., [3], [92].
11 R. Hirschl and A. Shachar, ‘The New Wall of Separation: Respecting Diver-
sity, Prohibiting Competition’, Cardozo Law Review 30 (2009): 2535–60.
12 The government adopted this solution with the enactment of the Family
Statute Law Amendment Act 2005 (amending the Arbitration Act 1991)
and the subsequent regulations that followed in 2007: Family Arbitration,
O Reg 134/07 (Ontario).
13 For further discussion, see A. Shachar, Multicultural Jurisdictions: Cultural
Differences and Women’s Rights (Cambridge: Cambridge University Press,
2001), pp. 117–45.
14 S. Bano, ‘In Pursuit of Religious and Legal Diversity: a Reply to the Arch-
bishop of Canterbury and the “Sharia Debate” in Britain’, Ecclesiastical
Law Journal 10 (September 2008): 283–309.
15 ibid.
16 Presently, these non-state entities operate outside the official system of law
in England and Wales – remaining ‘non-existent’ from the state’s perspec-
tive, notwithstanding the fact they operate within its territory and affect its
citizens. This situation spells trouble for women and their hard-won equal-
ity rights. Why? Because there is no guarantee that the unregulated religious
councils will not try to extend their reach beyond pure status or demarcation
decisions to certain ‘ancillary’ distributive issues, even where the latter have
already been dealt with by civil courts. This concern is exacerbated, ironi-
cally, where there is no regulation, coordination, or even mere knowledge
of what occurs behind the closed doors of privatized-diversity institutions.
This represents precisely the kind of deleterious situation that the regulated
interaction approach seeks to prevent.
17 E.g. the provisions (prior to its amendment in 2006) of the Arbitration Act,
1991 SO, ch 17, §§ 6, 19, 45–7.
18 These two models are described in M. McCubbins and T. Schwartz, ‘Con-
gressional Oversight Overlooked: Police Patrols versus Fire Alarms’, Ameri-
can Journal of Political Science 29 (February 1984): 165–79.
19 The distinction between ex ante and ex post regulation is addressed at greater
length in A. Shachar, ‘Privatizing Diversity: a Cautionary Tale from Reli-
gious Arbitration in Family Law’, Theoretical Inquiries in Law 9 (2008):
573–607.
20 Such a result is unattractive for religious authorities, which strive to provide
distinct legal services that no other agency can offer, as well as for the indi-
vidual who turns to this specialized forum in order to bring closure to a
charged marital or family dispute that bears a religious aspect that simply
cannot be fully addressed by the secular court system.