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April 15, 2013

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I. Glenn Cohen

Great post and paper Jeff. I am curious about "conversion." Do the religious personal law systems you write about alter the rules if members of the couple change their religions, or does the law of the religion at the time of the consecration of the marriage continue to bind? How should we think about this in relation to geographic movements within a nation state and its effect on what family law applies? I'd also love to hear you talk a little bit about the Ontario religious family law arbitration brouhaha (sp?) and the way in which the privatization of family law intersects with these themes.

Jordan Osserman

This is really interesting. I think it implies a new political analysis about the 'marriage equality' movement, as well -- it suggests that the movement's homogenization and reductionism of comparative legal differences prefigures the way it discursively homogenizes (homo)sexuality.

Jeff Redding

Glenn, thanks for your question, and sorry for the delay in getting around to answering it. Let me first emphasize the diversity in personal law systems; for example, in India and Pakistan alike, judges of every religious persuasion sit in state courts and administer the different family laws of different religious communities. While I am not an expert, my understanding is that in Israel, there is much more religious community control over the judges who decide that community's family law matters; thus, you would not see a Christian judge there deciding a Muslim family law dispute; however, in India and Pakistan, this would not be extraordinary. (On that note, let me add that Pakistan, over the past sixty years, has had a Christian, a Zoroastrian, and a Hindu Chief Justice of its Supreme Court, at various times.)

As for communal mobility in personal law systems, it is not uncommon for people in either India or Pakistan to convert to another religion to try to avail of the personal law of that community. So, for example, you commonly see Hindu men, married to Hindu women, convert to Islam in order to take an additional wife. The Supreme Court of India has tried to limit this practice (see the case of Sarla Mudgal), but this SC decision remains very controversial, seeing that it is linked to Hindu nationalist sentiments and fears about Hindus converting to Islam. As I discuss in my article referenced in this post, the American personal law system also limits conversions (territorial) through devices like inter-state comity practices before a state will grant a marriage license to an out-of-stater and also long waiting periods before a state will grant a divorce (upheld in Sosna v. Iowa). So, I think we might say that all personal law systems both encourage a certain sort of communal mobility by creating family law *options,* but also have anxiety that those options will be used 'too freely.' But, yeah, you've hit on the head one of the more interesting aspects of personal law systems... much more could be written on this in both the American and other contexts.

Thanks for your question!

Jeff Redding

Jordan, thanks for your comment. I very much agree! As I've posted on earlier, I think there are underexplored differences in the U.S.' queer communities and it's not clear to me that 'majoritarian marriage' is either the desired or necessarily best option for queers, especially in very conservative states. The push for a pan-U.S. marital equality ignores these inter-stitial differences between queer communities across the U.S.

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