The overlooked costs of religious deference

Citing the Qur'an, a German divorce court judge this year denied a fasttrack divorce to a Muslim woman who had been the victim of domestic violence and death threats from her husband. The judge rejected her application because the husband's exercise of his "right to castigate does not fulfill the hardship criteria'" for an expedited divorce. The decision, which sparked a firestorm o f controversy, comes at an important time in the movement to embrace pluralistic understandings o f family relationships. Scholars and policymakers around the world are advancing various schemes for sharing state control over domestic disputes with religious groups—ranging from proposals to share jurisdiction over family disputes with religious bodies to enforcing religious understandings, like any other prenuptial agreement This Article asks how women and children will fare in a system of religious deference. It maintains that the state has an important protective Junction to play for these traditionally vulnerable groups. Enforcing certain religious understandings o f marital relationships will likely undermine a woman fs ability to exit the relationship andf consequently, prevent her from policing the conduct in her own relationship and with respect to her children. Policymakers should proceed cautiously with any proposal to hand over authority for marital disputes since family violence occurs in religious communities, as it does throughout society, but is tolerated by some religious leaders and adherents. Drawing on our experience with faith-based exemptions to the duty to provide medical care for children, this Article concludes that the costs o f giving greater deference to religious understandings of family relationships must seriously be considered before we are willing to rob women and children of the state’s protections.