Religious Courts and Women's Equality

Marie Ashe, Suffolk University Law School, and Anissa Helie, John Jay College of Criminal Justice, CUNY, have published Realities of Religio-Legalism: Religious Courts and Women's Rights in Canada, the United Kingdom, and the United States at 20 U. Cal.-Davis J. International Law & Policy 139 (2014). Here is the abstract.

Religio-legalism – the enforcement of religious law by specifically-religious courts that are tolerated or endorsed by civil government – has long operated against women’s interests in liberty and equality. In the 21st century, religious tribunals – Protestant, Catholic, Jewish, and Muslim – operate throughout the world. Almost all are male-dominated, patriarchal, and sex-discriminatory. Harms to women produced by Muslim or sharia courts have come into focus in recent years, but present realities of religio-legalism operating through Christian and Jewish – as well as Muslim – religious courts in Western nations have been under-examined. This essay documents controversies concerning sharia-courts that have arisen in Canada and in the United Kingdom during the past decade and also looks at concurrent developments relating to sharia and to other-than-Muslim religious courts in the US.

Religious courts – Christian, Jewish, and Muslim – have in common that they assert original or exclusive jurisdiction over certain matters. In calls for “official recognition” of sharia courts, proponents have advanced a religious-equality argument, claiming that denial of that status to Muslim tribunals would violate the governmental obligation to avoid discrimination among religions. At the same time, sharia-related controversy has raised sharply the question about the implications for women’s liberty and equality rights that are produced by governmental accommodations of the religious-equality and religious-liberty interests asserted by all religious entities enjoying governmental recognition.

While recognizing the legitimacy and weight of the complaint against inequitable treatment of religions, we argue here that whenever governmental action to “resolve” sharia-related conflict adopts the avoidance of discrimination among religions as its single goal and therefore expands its “official recognition” to include additional religious courts, it will have the effect of enlarging religions’ power and at the same time exacerbating harms to women.

Referencing feminist writings that have documented the global spread of religious fundamentalisms from the 1990s to the present and that have exposed capitulations of liberalism to those fundamentalisms, we call for reconceptualization of the law-religion-women nexus. We urge recognition that governmental goals of equitable treatment of religions and protection of women’s rights will together be served not by expansions of governmental engagements with religion, but by retrenchment from religio-legalism. Thus, we urge, in policy and in law, clear prioritization of the protection of women’s rights and concurrent retreat from the formal recognition of all religious courts and of civil-law enforcement of the orders of any such bodies.

Download the article from SSRN at the link.