Multi-Tiered Marriage: Ideas and Influences from New York and Louisiana to the International Community

PDF · Joel A. Nichols · Aug-21-2012 · 40 VAND. J. TRANSNAT'L L. 135 (2007)

This Article contends that society in the United States needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction.  Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end—both within and without the United States—which might serve as the framework for further discussions.

Within the United States, the relatively new covenant marriage statutes of Louisiana, Arizona, and Arkansas provide a form of two-tiered marriage and divorce law.  But there is even an earlier, and potentially more profound, example in New York’s get statutes.  New York’s laws derive from civil statutes that deal with specific problems raised by the intersection of civil law and Jewish law in marriage and divorce situations.  New York’s laws implicitly acknowledge that there are multiple understandings of the marital relationship already present among members of society.  These examples from within the United States lay the groundwork for a heartier discussion of the proper role of the state and other groups with respect to marriage and divorce law.

As part of that discussion, the Article contends that the United States should look outward, to the practices of other countries.  Several other nations—including India, Kenya, South Africa, and others—have ensconced multiple understandings of marriage in their own civil laws.  That is, the state has (to varying degrees) ceded control and authority of marriage to other tribunals—or it has reified more than one understanding of marriage in its civil law.  Such multiple understandings are generally predicated upon religious grounds. These other nations and their comparative practices could serve as predecessors for new understandings of a more robust pluralism at U.S. law.

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