The separation between church and state exists in the United States as a basic tenet of our governmental system. In theory, it may be relatively straightforward to distinguish between the realm of the legal system and the realm of the religious institutions and leaders. However many of our clients come to us with ingrained beliefs, practices, or expectations that have their origins in religious teachings. In fact, for some, their religious identity may shape and define them as people. It is all well and good to say that the family law system is a secular arena, but we do our clients a disservice if there is no effort to recognize and understand the ways in which their approaches to their own families and cases may be affected by faith issues. The reality is that many litigants do not or cannot set aside their religious beliefs or customs when they become involved in a family law matter.
The goal of this issue is not to blame, praise, endorse, or condemn any particular faith or belief system. While we as lawyers need not always share or adopt the faith-based views of our clients, we may serve them more effectively if we have some understanding of their perspective. The views expressed in the various articles are those of the individual authors, and those views have not been adopted or endorsed by the ABA, the Family Law Section, or the members of the Board of Editors of this publication.
Some but not all of the major belief systems encountered in the United States are mentioned in articles in this issue. This does not represent a conscious selection process by the Board of Editors in conceptualizing this issue. Rather, we were unable to find willing and knowledgeable authors to address family law issues as they impact some faith groups. As well, this issue represents merely the tip of the iceberg in terms of discussing or describing the variations among belief systems.
In “Religion and Marriage: The Implications for Today’s State Family Codes,” Judge Thomas J. Walsh explores the history of marriage, its rituals, “marriage basics,” and the way it increasingly became a function of culture and religion. He observes that, in our multicultural, multireligious, and mobile age, marriage can mean different things to different cultures and religions, and mobility means that people with different views of marriage move through and into the United States. He compares and contrasts the religious or cultural rites necessary to establish a marriage with the secular requirements for a valid marriage and notes the ambiguity and confusion that sometimes results.
Rebecca A. Stahl writes about “Religious Issues in Child Welfare Cases.” This article focuses on issues arising in the context of education, corporal punishment, and medical decisions. It provides perspective for the practitioner who must address things like discipline methods, allowing or declining certain medical procedures, or similar dilemmas during representation of children or parents whose religious lives intersect with the child welfare system.
The Religious Freedom Restoration Act, a controversial federal provision, is discussed in “In the Wrong Hands, RFRA Shields the Perpetrators of Crimes Against Children,” by Marci A. Hamilton and Alice Nasar Hanan.
Folk wisdom has it that the family that prays together stays together. In an article called “Religion, Child Custody, and Visitation,” Margaret F. Brinig offers observations and advice for dealing with the often fault-driven and acrimonious fallout from the breakup of a couple who holds strong religious beliefs regarding family life, child rearing, or similar issues. She also provides a helpful list of questions to pose to clients to gauge religious concerns and prepare for religious-upbringing issues ahead of time.
The broad recognition of premarital agreements represents a relatively recent development in the law in the United States. By contrast, religious marital agreements such as the Jewish ketubah and Muslim nikah have existed for centuries. Ann Laquer Estin writes on “Marital Contracts with Religious Provisions.” She addresses the possibilities and challenges in seeking civil court enforcement of promises that also have religious or cultural significance.
In many jurisdictions, arbitration has been embraced as a favored means of dispute resolution. Barbara Atwood writes about “Religious Arbitration of Family Disputes.” In some instances, that receptivity extends to religious arbitration. While religious arbitration is an accepted form of dispute resolution, courts remain protective of their core role in safeguarding children’s interests and ensuring fundamental fairness. This article describes the practice of religious arbitration today and the constitutional and public policy concerns that it implicates.
Rabbi Yona Reiss is both a former Wall Street lawyer and the current Chief Rabbinical Judge of the Beth Din of the Chicago Rabbinical Council. He shares his unique blend of religious and secular knowledge in an article titled “Issues in Jewish Divorce.” Rabbi Reiss helps readers understand the nature of a “Jewish divorce”; getting a “get”; what happens when a husband refuses to grant a get; the scope and applicability of the Jewish marriage contract (the “ketubah”); arbitration of Jewish divorce issues; and professional and ethical considerations for attorneys representing Jewish clients.
“Sharia and Family Law: Public Policy and Recent Cases,” has been written by Christine Albano and Laura W. Morgan. The article notes that Sharia law has been considered in many cases, most notably in upholding Islamic premarital agreements. As to divorce and property division as well as child custody, sometimes the court will grant comity to a decision of a Sharia court, and sometimes not. The authors provide examples and discuss the instances in which Sharia law or determinations of Sharia courts may be recognized.
Molshree A. “Molly” Sharma writes “Hindu Marriage and Divorce: Issues Affecting Dissolution Matters in the United States.” She notes that complex issues can arise for the many persons married under the Hindu Marriage Act in the substantial Hindu diaspora in the United States. Hindu marriages, and therefore dissolutions, often raise concerns about the validity of the marriage, property and maintenance, jurisdiction, and custody.
In an article titled “Jewish Law and Assisted Reproductive Technology,” Amira Hasenbush addresses Jewish perspectives on sperm donation and artificial insemination, egg donation, in vitro fertilization and embryo disposition, surrogacy, and preimplantation genetic diagnosis. She notes that the value of having children is actually rooted in basic religious teachings, including the directive to “be fruitful and multiply.” However, the religious view of using medical assistance when a couple faces infertility may depend on whether a couple identifies as Reform, Conservative, or Orthodox, and on the type of technology utilized.