The Multi-Cultural Family

Ann Laquer Estin

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754626480
• eBook ISBN: 9781351885409
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

With the accelerating movement of individuals and families across national borders, the intersections of cultural and legal frameworks have become increasingly complex. The Multi-Cultural Family collects essays from around the world on the challenges of legal pluralism, minority religious communities and customary or indigenous law, with attention paid to marriage and divorce, as well as child custody and adoption, family violence and dispute resolution.

PART 1
Marriage and Divorce

Religious Minority Groups and the Secular State

[1]
Toward a Multicultural Family Law

Ann Laquer Estin*

I. Introduction

As the United States becomes a more diverse and multicultural society, law and legal institutions face new challenges. In the criminal law, there is the complicated question of when a defendant’s conduct may be excused on the basis of a “cultural defense.”¹ For family law, there are issues posed for courts when disputes involve unfamiliar ethnic, religious, and legal traditions. Over the past two decades, courts around the country have encountered Islamic and Hindu wedding celebrations, Muslim and Jewish premarital agreements, and divorce arbitration in rabbinic tribunals. In these cases, courts have struggled to understand and accommodate the tremendous cultural and religious diversity of America today within a legal framework established long ago.²

The project of building a multicultural family law is complicated by the fact that American family law is based on specifically Christian norms. In England, before the colonization of North America, family law was ecclesiastical law, and it remained within the jurisdiction of the church until the mid-nineteenth century.³ Although jurisdiction over family matters in the American colonies was in secular courts, the content of our early family law was firmly rooted in English ecclesiastical law.⁴ Beyond the specific legal rules governing marriage, annulment, and divorce, American marriage policies grew from a set of religious and political ideas that were directly enforced through governmental policies over more than a century.⁵ Family law rules appear to be secular and neutral to the contemporary observer, but they still reflect this religious heritage. As a result, our rules do not always fit well with practices drawn from different traditions, and it can be difficult to determine to what extent accommodation is appropriate.

This article reviews a number of areas in which cultural and religious accommodation has become an issue in private family law disputes. Part I considers the circumstances in which courts extend recognition and respect to marriages, divorces, and custody decrees which originate within a particular tradition and which differ in significant respects from the model that is more familiar in our legal culture. Part II describes courts’ responses to cases that raise questions of religious law or practice in the context of marriage and divorce. Part III offers some reflections on the process of accommodation, arguing that the courts’ decisions in these cases demonstrate the importance of incorporating this diversity within a larger framework of fundamental values established in American and international law.

I Recognition and Respect: Marriage, Divorce, and Custody

As people and families move across geographic and cultural boundaries, their legal circumstances become complicated by the variation in laws and customs governing marriage, divorce, and parental status.⁶ Over generations, the principles of conflict of laws or “private international law” have evolved to help coordinate this diversity. As patterns of movement around the globe have shifted, however, individuals are more likely to maintain their connections within multiple social and legal frames.

A Marriage

Traditional conflict of laws principles applied in the United States hold that a marriage valid in the place of celebration is valid everywhere.⁷ This rule is based on a policy judgment that the state where a marriage is solemnized is best able to guarantee that it was based on the free consent of the parties, and on a broader policy in favor of sustaining the validity of marriages.⁸ Marriage validation policies apply most strongly when parties have relied on the validity of their marriage over time, when the challenge to the marriage is made by a third party, or when the defects relate to formalization rather than substantive marriage restrictions.⁹ The policy is traditionally subject to narrow exceptions, “when a claimed incident of the marriage is sought to be enjoyed in a state where such enjoyment violates strong public policy,” such as the policies against incestuous or polygamous marriages.¹⁰ Private international law principles on marriage recognition are similar to the ones established in the United States. The Convention on Celebration and Recognition of the Validity of Marriages,¹¹ adopted by the Hague Conference on Private International Law in 1977, reflects a strong marriage validation policy with a provision permitting states to refuse recognition to marriages on grounds of public policy.

1. SOLEMNIZATION AND CONSENT

Laws in the United States permit marriages to be formalized by either civil or religious authorities, after the parties have obtained a marriage license.¹² State laws vary in terms of requirements for marriage ceremonies, with some listing specific clergy who may officiate and others providing broadly for solemnization in accordance with the traditions of “any religious denomination, Indian Nation or Tribe, or Native Group.”¹³ Statutes that appear to deny to some religious groups the right to celebrate marriages within their own traditions present an obvious constitutional problem, and a court may choose to interpret such a statute broadly to avoid this result.¹⁴

Case law in many states sustains the validity of marriages even when the statutory formalities were not properly followed. A marriage may be upheld despite a failure to obtain or properly record a license, or despite the fact that the official or clergy member who celebrated the marriage was not legally qualified to perform marriages.¹⁵ This approach is easily extended to marriages celebrated with different customs or traditions. Thus, in Aghili v. Saadatnejadi,¹⁶ the parties obtained a marriage license in Tennessee and had an Islamic wedding blessing performed by an imam. Several weeks later, they had a formal wedding reception and began living together as husband and wife. Although the husband later disputed the validity of the marriage, arguing that the license had not been properly returned after the ceremony and that the imam was not authorized to perform marriages, the court upheld the validity of the marriage. In Persad v. Balram,¹⁷ the wedding celebration was a two-hour “Hindu marriage or ‘prayer’ ceremony” conducted by a Hindu priest, or pandit, before 100 to 150 guests at the bride’s home. When the husband challenged the validity of the marriage seven years later, the court rejected his arguments despite evidence that the parties had not complied with the New York marriage statutes.

Sometimes, however, the gap between traditions is harder to bridge. In Farah v. Farah,¹⁸ the court had a more difficult time assimilating unfamiliar marriage customs within the traditional conflict of laws norms. After the couple signed a marriage contract described as a “proxy marriage form,” or nikah, in Virginia, their marriage was concluded by their representatives in an Islamic ceremony in England. A month later, the couple traveled briefly from Virginia to Pakistan for a formal wedding reception, or rukhsati, which “symbolizes the sending away of the bride with her husband.” When the husband challenged the validity of the marriage a year later, the appellate court looked to the law of England, and concluded that the marriage was not valid because the proxy ceremony did not conform with the requirements of English law.¹⁹ Although this analysis was based on the traditional conflict of laws rule, the court’s ruling contradicts the marriage validation policy and was not a necessary result. In other cases American courts have extended the presumption favoring marriage to religious or traditional marriages solemnized in other countries, despite evidence of defects in the formalization process. For example, in Xiong v. Xiong,²⁰ the court sustained the validity of a marriage celebrated in a traditional Hmong ceremony in Laos in 1975 by a couple about to flee from the country. Acknowledging that the couple had not complied with the formalities required by the Laotian government, the court determined that the marriage should be upheld as a putative marriage, based on their good faith belief in its validity.

Beyond the question of formalities, the question of marital consent may arise in different cultural contexts. In some traditions, marriages may be arranged by relatives, a practice that does not present difficulties so long as both the bride and groom give their consent. Traditions in which a father or guardian has the authority and the right to consent to marriage on behalf of his child or ward are more problematic. Norms of both domestic and international law mandate that marriage be based on the free and full consent of the parties,²¹ and in this context the court’s obligation is to support an individual’s right to make this decision in the face of pressures to conform to traditional roles. When consent has not been freely given, courts have the power to grant an annulment. In Singh v. Singh,²² a New York court inquired carefully into the circumstances of a Hindu marriage celebrated in India, and granted an annulment because the bride had refused ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• The Family, Law & Society
• Series Preface
• Introduction
• PART I Marriage and Divorce
• Part II Children
• Part III Multicultural Dispute Resolution
• Name Index