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Realities of Religio-Legalism: Religious Courts and Women’s Rights in Canada, the United Kingdom, and the United States

Sunday 31 August 2014, by siawi3

Source: JILP - UC Davis Journal of International Law and Policy - , Vol. 20, 2014

Marie Ashe and Anissa Hélie

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.

Introduction................................................................................. 141

I. The Ontarian “Sharia Tribunal†Controversy (2003-2006)......... 145
A. The Ontarian Arbitration Act of 1991................................ 146
B. Religious Arbitration throughout Canada........................... 147
C. The Ontarian “Sharia Tribunal†Proposal and Controversy... 149
D. Feminist Opposition, the Boyd Report, and Further Feminist Opposition 155
E. The McGuinty “Ban†and Ontarian Legislation of 2006....... 159

II. Muslim Tribunals and Sharia Councils in The United Kingdom (2008-2014) 161
A. Historical Background..................................................... 162
B. Muslim Arbitration Tribunals and Sharia Councils.............. 170
1. Muslim Arbitration Tribunals: Operations and Effects for Women 171
2. Sharia Councils: Operations and Effects for Women...... 175
i. Operations of the Mediation Councils..................... 176
ii. Effects for Women............................................... 177
C. Arbitration and Mediation (Equality) Bill.......................... 181

III. Realities of Religo-Legalism in the United States................... 185
A. The American Constitutional Law-Religion-Women Nexus (1990-Present) 186
B. Operations of Christian Religious Courts in the US............. 190
C. The American “Anti-Sharia†Movement............................. 192
D. Dangers of US International “Religious Engagement†......... 197

IV. Resistance to Religio-Legalism................................................ 199
A. Remembering Feminist Analyses of Fundamentalisms......... 199
B. Rejecting Liberal and Fundamentalist Collusion.................. 203
C. Reconceptualizing the Law-Religion-Women Nexus............ 205

Conclusion.................................................................................... 208

* Marie Ashe is Professor of Law at Suffolk University Law School, Boston.
Anissa Hélie is Assistant Professor of History at John Jay College of Criminal Justice, New York City.

Realities of Religio-Legalism: Religious Courts and Women’s Rights in Canada, the United Kingdom, and the United States