Gender, Religion, and Family Law
Theorizing Conflicts between Women’s Rights and Cultural Traditions
Publication Year: 2012
Published by: Brandeis University Press
Title Page, Copyright Page
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This anthology, based on the initial conference of a new academic project I founded and chair at Brandeis University called the Project on Gender, Culture, Religion, and the Law, is part of a new book series that I co-edit with Lisa Fishbayn Joffe, the project director. My reason for founding the Project on Gender, Culture, Religion, and the Law can be simply put: the status of women is the cause of our time. The mission of the project is more complicated—we seek to identify ways to work...
Introduction: Theorizing Conflicts between Women’s Rights and Religious Laws
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Open the newspaper or surf the net any day and you will find a range of stories, both domestic and international, involving conflicts between women’s rights and religious or cultural traditions. Many of these raise challenging questions about the scope of freedom of religion and the role of the state in balancing the rights of individuals, religious authorities, and the broader community. A representative sample might include stories like these...
Part I: The Ethics of Recognizing Religious Family Law in Secular Societies
1 | Principles or Compromises: Accommodating Gender Equality and Religious Freedom in Multicultural Societies
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The “paradox of liberalism,” often phrased as the problem of how to “tolerate the intolerant,”1 is not only a problem of theorists but a practical problem for those who are committed both to gender equality and to religious freedom. To pursue gender equality is to encounter the frequent objections that challenged practices rest on religious grounds; to defend religious freedom is to confront objections that a religious school’s decision to fire a pregnant teacher...
2 | Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law
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Demands to accommodate religious diversity in the public sphere have recently intensified. The debates surrounding the Islamic headscarf (hijab) in Europe vividly illustrate this trend. We also find a new challenge on the horizon: namely, the request to “privatize diversity” through alternative dispute resolution processes that permit parties to move their disputes from public courthouses into the domain of religious or customary sources of law and...
3 | Marriage Pluralism, Family Law Jurisdiction, and Sex Equality in the United States
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Gender justice remains unfinished business. How is family law, in particular the relationship between civil and religious family law, relevant to the challenge of securing gender justice both in the United States and around the globe? This question has received comparatively little attention when measured against the by-now voluminous literature on whether multiculturalism and feminism (and sex equality) are in conflict, as well as on how constitutional democracies...
Part Two: Exploring the Intersections of Civil and Religious Laws
4 | From Religious “Right” to Civil “Wrong”: Using Israeli Tort Law to Unravel the Knots of Gender, Equality, and Jewish Divorce
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The purpose of this paper is to describe how Israeli cause lawyers2 are using tort law to untie the knots between gender, equality, and Jewish divorce law. To that end, I will give a brief overview of Israel’s family law regime and its gender quagmire, explain how the tort of “get-refusal” is being constructed in response, present some preliminary statistics from the trenches, and outline some of the practical and theoretical implications of these new tort cases. ...
5 | Flirting with God in Western Secular Courts: Mahr in the West
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If liberalism is committed to the individual and individual choice, it is also conventionally taken to be committed to freedom and equality. Giving effects to such principles often creates tensions: the “free” acts of individuals will sometimes produce inequality, and state enforcement of equality will likely reduce individual freedom. Moreover, when faced with the claims of subordinated groups, liberalism is asked to make concessions in which these...
6 | Muslim Family Law in South Africa: Conflating the Right to Religion with the Privileging of Religion?
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It is commonly accepted that the arena of family law is a tension-filled one; that the equality and nondiscrimination rights of women are violated through laws, policies, and practices; that despite both international and domestic obligations in regard to equality and nondiscrimination, impunity in this regard is the norm rather than the exception. The focus of this chapter will be limited to briefly highlighting issues around sex and gender equality and...
7 | Recognition of Polygamous Marriages in the New South Africa
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In Setswana, the word for “polygyny” is lefufa. It also means “jealousy.” Mogadikane, the word for “co-wife” is derived from the verb meaning “to rival, annoy, or cause a pain in the stomach.”2 Women complain that polygyny breeds insecurity, hostility, and witchcraft among those who find themselves in competition for their shared husband’s scarce economic and emotional resources.3 Polygyny brings with it both the humiliation of being supplanted in...
Part Three: Narratives of Innovative Law Reform
8 | Women, Resources, and Changing the Religious System: A Case Study of the Orthodox Jewish Wedding Ritual
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For the last few years I have been researching a small, yet growing number of Modern Orthodox women in Israel who seek to challenge, resist, or adapt the Orthodox wedding ritual to transform it into an expression of their own identity, values, and ideals. These women identified themselves both as Orthodox and as feminists or having feminist consciousness, at least to some degree. These two identities are often at odds, since values embraced by feminism...
9 | The Yoetzet Halakhah: Avoiding Conflict While Instituting Change
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Modern Orthodoxy,1 like most other religious communities, has been affected by the feminist movement in modern times. As in the secular community, Modern Orthodox women are now more learned and more active in the community.2 Stages in a woman’s life are now openly celebrated in the Modern Orthodox community, and there is a growing demand by women to be more active in spiritual ceremonies, especially those involving prayer.3 ...
10 | The Temple for Women Initiates Project: A Framework for Culturally Meaningful Feminist Expression in Rural Areas
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My paper is based on the realization I have made as a feminist activist in a country where 94 percent of the people are officially Muslims1 that it is possible to improve people’s understanding of each others’ rights and responsibilities without embarking into a discourse challenging mainstream religious norms. In Senegal (as is the case in sub-Saharan Africa in general) the majority of people continue to believe in the taboos and prohibitions set up by their...
List of Contributors
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Publication Year: 2012
Series Title: Brandeis Series on Gender, Culture, Religion, and Law