Divorced from religion

The archbishop of Canterbury's suggestion that sharia divorce tribunals might be allowed in England raises the bigger question of whether religious tribunals should be permitted to settle divorce cases in the first place.

Published February 19, 2008 9:30PM (EST)

The archbishop of Canterbury, the Most Rev. Rowan Williams, got himself in a tangle earlier this month when he suggested in a radio interview that accommodating for sharia, or Islamic law, in Britain was "unavoidable." It seems that people overreacted -- the archbishop was referring mostly to divorces in which both sides have agreed to follow the judgment of a religious tribunal and was not suggesting that sharia be adopted in other areas of British law. As the New York Times puts it, the archbishop's suggestion "was groundbreaking only in extending to Islamic tribunals in Britain a role that Jewish and Christian ones have long played in the judicial systems of secular societies." (It continues to point out that courts in the United States have "long endorsed" these sorts of tribunals.)

I bring this up as a Broadsheet issue not because of the archbishop (the man has gotten enough flak) but because of the underlying question of when people should be able to cite their religion as a reason to sidestep a country's legal system. The Times cites three questions that should be raised before a country's judicial system defers to a religious court:

1. Have the people "authentically consented to religious adjudication"?

2. Should they be allowed to change their minds?

3. Are the decisions of those tribunals "offensive" to fundamental conceptions of justice? (I'm not sure what the exact definition would be of "fundamental conception of justice," but I'd guess that in England, stoning wouldn't make the cut.)

These questions and their answers are not cut and dried (there's some debate, for example, over what the answer should be to the second), but the issue I'm most concerned about in terms of Broadsheet issues is what potential conflicts exist between religious law and women's rights. For example, how can you tell if she has "authentically consented"? I would think it would be quite possible for a woman to be coerced or pressured into agreeing to have her case heard by a religious tribunal when a secular court would leave her better off. Robin Fretwell Wilson, a law professor quoted by the Times, wrote in a soon-to-be published article on the topic that women "who decide to seek a divorce can face harsh financial consequences under Islamic law." "Threatened with the prospect of certain poverty," she's quoted as saying, "some women will surely be forced to stay in an abusive relationship." Wilson argues 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," asserting that some religions are "tilted against women."

This is not to say that Islam is the only religion whose family law tribunals might be biased against women (most of the world's religions don't have a fantastic record when it comes to women's rights). Rather, I think the controversy stirred by its potential acceptance into British family law is an invitation to question what threat religious tribunals can pose to women's rights, regardless of which religion is involved.

By Catherine Price

Catherine Price is an award-winning journalist and author of Vitamania: How Vitamins Revolutionized the Way We Think About Food. Her written and multimedia work has appeared in publications including The Best American Science Writing, The New York Times, Popular Science, O: The Oprah Magazine, the Los Angeles Times, The San Francisco Chronicle, The Washington Post Magazine, Salon, Slate, Men’s Journal, Mother Jones, PARADE, Health Magazine, and Outside. Price lives in Philadelphia.

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