MARRIAGE: CIVIL, RELIGIOUS, CONTRACTUAL, AND MORE*

Abstract

Although it is increasingly common to speak of “civil marriage,” that label falls far short of capturing the complexities of marriage. This Essay asks what might it mean for U.S. law to take seriously the civil and religious, contractual and covenantal, individual and communal claims about marriage. Muslims, Jewish, and Christian claimants alike struggle to navigate their religious beliefs about marriage and divorce and the expectations (and requirements) of the state regarding family law. The Essay suggests a way forward through a more explicitly pluralist approach that takes the interplay between law and religion seriously.Key Points for Family Court Community: Many legal discussions wrongly break marriage into simple categories of “civil marriage” and “religious marriage” and mistakenly assume that these elements of marriage can be separated. For many people, the religious aspects of marriage and divorce are more important than the civil aspects. Recent controversies over shari’a tribunals for family law in the United Kingdom and Canada will not remain isolated, and more controversies about marriage and divorce will soon arise in the United States for religious individuals. We should be “conscious pluralists” regarding family law and consider both religious and civil aspects of marriage and divorce in law‐creating and decision‐making.