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Cardozo Law Review

Abstract

This Article examines the civil regulation of religious marriage in liberal democracies. While legal scholarship has extensively explored nonmarital intimate relationships, it has paid comparatively little attention to couples who regard themselves as married under religious law without corresponding civil status, as well as couples who remain religiously married following a civil divorce. These arrangements, prevalent among religious minorities such as Orthodox Jews and Muslims, often generate significant legal and personal harms, including exclusion from civil protections, economic vulnerability, and constrained exit from intimate relationships.

This Article develops a structured analytical framework grounded in three liberal perspectives. The individual-rights perspective conceives marriage and divorce as civil institutions but recognizes that disregarding the religious dimensions of these practices may undermine substantive autonomy, equality, and human dignity. The pluralist liberal perspective emphasizes communal autonomy and evaluates the conditional recognition of religious norms and tribunals, subject to requirements of voluntariness, protection against exploitation, and a meaningful right of exit. The third perspective—consensus-building in the public sphere—extends beyond internal liberal reasoning to address situations in which religious communities seek public and institutional recognition of marriage norms that diverge from dominant secular understandings.

Drawing on comparative examples from the United States, Canada, the United Kingdom, South Africa, Singapore, India, and Israel, this Article demonstrates how these perspectives inform distinct regulatory models, ranging from strict civil separation to partial accommodation and state-anchored pluralist arrangements. It argues that although Western liberal systems predominantly rely on individual-rights and pluralist frameworks, elements of consensus-building already surface in practice and may become increasingly salient in contexts marked by deep cultural diversity and political polarization.

Disciplines

Comparative and Foreign Law | Family Law

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