Enforcement of Islamic Pre-Nup Challenged On Appeal

An appeal was filed last month in a Texas state appellate court challenging a trial court's enforcement of an arbitration clause in an Islamic pre-nuptial agreement. The petition for a writ of mandamus in In re Ayad, (TX App., filed 6/22/2021) (full text) contends that the agreement is void as a matter of law and against public policy, and was involuntarily executed. The petition contends in part:

The trial court clearly abused its discretion in failing to properly analyze the law when it validated and enforced the Islamic Pre-Nuptial Agreement and compelled arbitration in front of a Muslim Court applying solely Islamic Law....

[Thanks to Eugene Volokh via  Religionlaw for the lead.]

Suit Challenges Disqualification of Ministers Ordained Online As Marriage Officiants

Suit was filed yesterday in a Pennsylvania federal district court seeking to declare unconstitutional the position taken by the Bucks County, Pennsylvania clerk of courts that ministers who were ordained online may not solemnize marriages under Pennsylvania law. Apparently the county takes the position that those ordained online are not clergy of a "regularly established church or congregation", as required by 23 Pa. Cons. Stat. Ann. § 1503. The complaint (full text) in Universal Life Church Monastery Storehouse v. Bobrin, (ED PA, filed 2/16/2021), alleges that this interpretation violates the Free Exercise, Establishment and Equal Protection Clauses, saying in part:

... Defendant has used the powers of her office to discourage ULC Monastery ministers from exercising rights afforded to ministers of other religions. Defendant’s apparent policy of discrimination unconstitutionally prefers certain religions or religious denominations over others and burdens ULC Monastery’s and its ministers’ free exercise of religion. To the extent Defendant is correct that 23 Pa. Cons. Stat. Ann. § 1503 bars ULC Monastery ministers from solemnizing marriages while granting that benefit to ministers of other religious denominations, the statute is unconstitutional.

Universal Life Church issued a press release announcing the filing of the lawsuit.

Humanist Organization Lacks Standing To Challenge Texas Ban On Secular Marriage Celebrants

 In Center for Inquiry, Inc. v. Warren, (5th Cir., Feb. 10, 2021), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a suit by a secular humanist organization challenging as an Establishment Clause violation Texas law that refuses to allow secular celebrants to conduct marriage ceremonies. The court held that plaintiffs are asking for relief that does not remedy their injury in full, explaining:

The appellants are seeking relief that would essentially compel ... [the] Dallas County Clerk, to record marriages conducted by secular celebrants such as themselves. However, even if such relief were hypothetically granted, it would not fully redress the injuries for which the appellants bring suit. Here, the appellants’ injuries relate to the barrier to legally solemnize marriages. But even if they prevail in this litigation, relief would be incomplete because the appellants would still be subject to criminal prosecution. In other words, the barrier to legally solemnizing marriages would nevertheless remain.

Universal Life Church Can Move Ahead In Challenge To Tennessee Ban On Marriages By Those Ordained Online

 In Universal Life Church Monastery Storehouse v. Nabors, (MD TN, Dec. 22. 2020), a Tennessee federal district court held that the Universal Life Church and two of its ministers have standing to challenge Tennessee's ban on solemnization of marriages by clergy who received online ordination. It also held that the state Attorney General, District Attorney Generals and County Clerks (but not the Governor) are proper defendants.

Indian State Places New Restrictions On Religious Conversion

On Nov. 27, the Indian state of Uttar Pradesh promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (full text) (section-by-section explanation). It outlaws religious conversions entered solely for the purpose of marriage, as well as religious conversions by means of misrepresentations, force, coercion, undue influence, allurement or fraud. Violations are punishable by imprisonment of 1 to 5 years, and a fine of up to $200(US)-- with higher punishments where a minor, a woman or member of a Scheduled Caste are involved, or a mass conversion. 

The new law also sets out an elaborate procedure for anyone who wishes to change his or her religion. The procedure includes a 60-day advance notice to the District Magistrate, followed by a police investigation, and a post-conversion filing. The clergy planning to conduct a conversion must file a notice 30 days in advance. The Hindu reports on the new law.

Time reports on the "love jihad" conspiracy theory that has given impetus to laws such as this one:

Love Jihad is a baseless conspiracy theory that Muslim men are attempting to surreptitiously shift India’s demographic balance by converting Hindu women to Islam through marriage. The narrative has been pushed by Hindu nationalist groups close to India’s ruling BJP since Prime Minister Narendra Modi was first elected in 2014....

The new law comes just two weeks after judges in Uttar Pradesh’s high court overturned a previous decision that religious conversions for the sake of marriage are unacceptable....

The high court case referred to is Priyanshi @ Km. Shamren and others v. State of U.P. and Another, (Allahabad High Court, Nov. 11, 2020). The court said in part:

Right to choose a partner irrespective of caste, creed or religion, is inhered under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.

No Fault Divorce Does Not Infringe Husband's Free Exercise Rights

 In Melki v. Melki,(MD App., Sept. 29, 2020), the Maryland Court of Special Appeals rejected a husband's claim that granting his wife a no-fault divorce violates his free exercise rights. In addition to rejecting jurisdictional and contract clause challenges, the court said in part:

Because the Orthodox faith does not permit divorces absent fault, Husband claims that the dissolution of the marriage on the grounds of a twelve-month separation would unconstitutionally force him to commit a mortal sin according to his religion.... Because a trial court granting a divorce merely dissolves a civil contract between the spouses, courts universally hold that no-fault divorce statutes do not infringe on the right to the free exercise of religion, even if a spouse’s religious beliefs prohibit no-fault divorces....

 Husband "still has [his] constitutional prerogative to believe that in the eyes of God, [he] and [his] estranged [wife] are ecclesiastically wedded as one...." ... In fact, it might well violate the Establishment Clause of the First Amendment to compel Wife to remain married to Husband because of Husband’s religious beliefs, for the court would then be preferring one spouse’s beliefs over the other spouse’s.

Britain Asks For Comment On Reform of Marriage Law

Britain's Law Commission last week issued a 458-page Consultation Paper on Weddings Law (full text). The document titled Getting Married, proposes for public comment significant changes in laws relating to marriage in England and Wales. The document explains:

1.3 Weddings law in England and Wales is in desperate need of reform.

1.4 The law is ancient, with most of the current rules dating from the 18th and 19th centuries. The rules were devised at a time when virtually everyone lived, married and died within a single community, and when most people shared the same faith and beliefs; indeed, religion would have been the dominating force in most people’s lives. Weddings today are still governed by this system. The law is based on a way of life that bears little resemblance to life in England and Wales today.

1.5 Unsurprisingly, then, the law does not work for many. It restricts how couples are permitted to celebrate their weddings, for historical rather than current policy reasons.

3.4 ...[T]he scheme we provisionally propose is based on regulation of the officiant. That would mark a significant shift in focus from the current law, under which regulation is generally based around the building in which the wedding takes place. With very few exceptions, under our proposed scheme, the same rules would apply to all weddings. Again, that is different to the current law ... under which different rules often apply to Anglican weddings, Jewish and Quaker weddings, other religious weddings, to civil weddings that take place in a register office, and to civil weddings that take place on approved premises.

Law & Religion UK reports on these developments.

Michigan Will Allow Secular Marriage Celebrants

In an April 2 press release, the Center for Inquiry reports:

Secular celebrants are now permitted to officiate and solemnize marriages in Michigan, after the state attorney general reversed the government’s opposition to a lawsuit brought by the Center for Inquiry (CFI). Promising that the state considers CFI-trained and certified Secular Celebrants to be covered by existing statutes regarding marriage solemnization, the presiding federal court brought the case to a close.

British Court Refuses Financial Support Orders For Non-Complying Religious Marriage Ceremonies

Under Britain's Matrimonial Causes Act, a party to a "void marriage" may obtain a decree of nullity from a family court which entitles the party, among other things, to seek an order for financial support.  In Attorney General v. Akhter, (EWCA, Feb. 14, 2020), Britain's Court of Appeal held that a party to an Islamic marriage ceremony held in a restaurant rather than a building registered as a marriage site and without other required formalities may not obtain a decree of nullity because the original ceremony not was not sufficient to even create a "void marriage."  The husband and wife had planned to follow the religious ceremony with a civil ceremony,  but never followed through on those plans. They remained together for 18 years and had four children before the wife sued for divorce. The court also posted a Media Summary of the decision.

Reporting on the lawsuit, International News quotes a critic of the decision

Today’s judgment will force Muslim and other women to turn to Sharia ‘courts’ that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system.

Cuomo Vetoes Expansion of Federal Judges Who Can Officiate At Weddings

On Dec. 20, that New York Gov. Andrew Cuomo vetoed S6330 which would have expanded the federal judges who can officiate at marriage ceremonies in New York.  Currently only federal judges sitting in New York districts or on the 2nd Circuit can officiate. The vetoed bill would have expanded this to all federal judges. According to yesterday's New York Times, Cuomo said in his veto message:

I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration. President Trump does not embody who we are as New Yorkers.

Court In India Reduces Power of Ecclesiastical Courts In Goa

Hindustan Times of Oct. 19 reports:

After hearing two separate petitions filed by persons whose marriages were annulled by a so-called church court, the Bombay high court at Goa has struck down Article 19 of a Portuguese edict that gave legal sanctity to rulings of ecclesiastical tribunals in the former Portuguese colony

The high court said the article was “unconstitutional, illegal, null and void and ultra vires Articles 14 and 21 of the Constitution of India.”

The decree in question, Portuguese Decree 35461, has its origin in a 1940 agreement between the government of Portugal and the Holy See.... The decree went into effect in Goa in 1946 and governs marriages and divorces of Catholic couples. But in doing so, it virtually reduced the role of civil courts to administrative bodies, merely tasked with ensuring the execution of orders passed under the decree....

Interpreting the judgement, [a former law commissioner] said that now, couples who seek annulment of a church marriage can approach the ecclesiastical tribunals, but will also have the option of approaching the civil courts to dissolve the civil aspect of marriage....

Court Refuses To Enforce Jewish Marriage Contract Provision

In Tilsen v. Benson, 2019 Conn. Super. LEXIS 2475 (CT Super. Ct., Sept. 11, 2019), a Connecticut trial court opinion that has just become available on LEXIS, the court rejected plaintiff's argument that it could constitutionally apply neutral principles of law to enforce a provision in a ketubah (Jewish marriage contract) as if it were a pre-nuptial agreement. According to the court, the ketubah provided that any divorce would be "according to Torah law."  The husband argued that this means there should be a 50/50 division of property with no obligation for continuing alimony payments. In denying plaintiff's motion to enforce the ketubah, the court said in part:

To educate the court about the parties' chosen law, the plaintiff submitted the affidavit of a rabbi ... describing his understanding of Torah law as it pertains to alimony and property division. The defendant also submitted the affidavit of a rabbi. However, the defendant's rabbinical expert disagrees with the plaintiff's rabbinical expert.

It is clear, then, that enforcement of the "Torah law" provision in the Ketubah would require the court to choose between competing interpretations of Jewish law. But resolving such a dispute is precisely what the neutral principles approach forbids a court to do. The first amendment does not permit courts to resolve disputes over the meaning and interpretation of the Torah-or the Koran, the New Testament or any other religious text....

European Court Says Marriage Annulment By Greek Court Violates Couple's Rights

In Theodorou and Tsotsorou v. Greece, (ECHR, Sept. 5, 2019) [decision in French], the European court of Human rights held that Greece violated Art. 12 of the European Convention on Human Rights (Right to Marry) when it annulled the marriage of applicants under a law interpreted as barring the marriage of a man to the sister of his former wife.  A Greek court annulled the ten-year marriage of the couple on the petition of the husband's first wife who he had divorced. Greek law bars marriage of individuals related by collateral descent up to the third degree. As summarized by the court's English language press release:

[W]ith regard to the Government’s arguments concerning “biological considerations” and the risk of confusion, the Court noted that those problems did not arise in the present case. It was not clear what exactly those biological considerations involved, or the practical risk of confusion preventing the applicants’ marriage, given that they were not blood relatives and had not had children together. Furthermore, with regard to the Government’s argument that there existed a social need for communication between the members of a family and the outside world, the Court observed that the Government had not specified how the prohibition in question could assist in or serve such communication.

Texas Limit On Marriage Officiants Upheld

In Center for Inquiry, Inc. v. Warren, (ND TX, Aug. 16, 2019), a Texas federal district court rejected a number of constitutional challenges to a Texas law that limits those who can officiate at marriage ceremonies to clergy and specified government official. It does not allow other secular celebrants. The court, applying the Lemon test held that the law does not violate the Establishment Clause, saying in part:

The Statute does not discriminate among religions nor does it have the primary objective of favoring religion over nonreligion. At most, the Statute provides a benefit to religion that is indirect or incidental in light of the historical context of this Statute; however, this does not make the Statute unconstitutional.... The Statute still provides for civil, nonreligious ceremonies performed by judges, while also allowing those who wish to be married in a religious ceremony to do so.

The court also rejected an equal protection challenge, saying in part:

The Statute in this case rationally serves that purpose by limiting secular officiants to current and retired judges and by leaving it up to the religious organization—any religious organization—to determine who is authorized in accordance with its belief system to solemnize marriages. The fact that the Statute does not allow every secular individual trained to solemnize marriages to legally solemnize marriages in Texas does not make this statute unconstitutional. Instead, there is a rational basis for the Statute’s limitation based on both the historical practice of allowing judicial and religious officials to solemnize marriages, and because these individuals and their respective organizations can reasonably be expected to ensure the prerequisites to marriage are met and that the ceremony contains the necessary level of respect and solemnity without the need for significant involvement and oversight by the state.

Universal Life Church Sues Over Tennessee Ban On Solemnization of Marriages By Those Ordained Online

In a press release, Universal Life Church Ministries announced that it filed suit in a Tennessee federal district court on June 21 challenging the constitutionality of an amendment to the Tennessee Code scheduled to go into effect on July 1. The new law (full text) prohibits individuals who have received online ordinations from solemnizing marriages in the state. The Universal Life Church Ministries  has ordained more than 20 million individuals worldwide during the past 40 years through its online ordination. The lawsuit, brought on behalf of three ministers in Tennessee, alleges violations of the 1st and 14th Amendments and Art. I Sec. 3 of the Tennessee Constitution.  In its press release, ULMC says in part:

In the year 1454, Johannes Gutenberg – after years of painstaking work and near financial ruin – changed the world forever when he utilized his brilliant new printing press to successfully print the Bible. This Earth-shattering technological innovation arguably marked one of the first steps in a long chain of events that would bring about the Protestant movement, and for the first time in centuries return the power of religion to common women and men. People were finally free to pray, read, learn, commune, and question in a manner of their choosing – and the world is better off for it.

Much like Johannes Gutenberg, the Universal Life Church Ministries argues that it has always embraced the remarkable power of technology to bring people together in a global spiritual community and to push the conversation forward in pursuit of ever-higher levels of enlightenment.

FLDS Bishop Convicted By Canadian Court In Marriage of His Minor Daughter

In Regina v. Oler, (B.C. Sup. Ct., May 17, 2019), a British Columbia trial court found Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) Bishop James Oler guilty under Canadian Criminal Code §273.3(1)(b) of removing his 15-year old daughter from Canada for purposes of sexual exploitation. As summarized by the court:

The Crown alleges that upon receipt of instructions from Warren Jeffs on June 23, 2004, Mr. Oler facilitated the removal of his daughter C.E.O. from Canada and transported her together with others to Cedar City, Utah, on June 24, 2004, and then to Mesquite, Nevada where C.E.O. was married to James Leroy Johnson on June 25, 2004, by Warren Jeffs in the presence of Mr. Oler. In doing so, Mr. Oler foresaw that upon her marriage, C.E.O. would be the subject of sexual contact which, if it had occurred in Canada, would be prohibited by s. 153 of the Code.

Lethbridge News reports on the case.

Indian Court Says Hindu Marriage Act Covers Marriage Involving Transgender Woman

A trial court in India has held that a marriage between a man and a transgender woman, both of whom profess the Hindu religion, is valid under the Hindu Marriage Act and the Registrar of Marriages is required to register the marriage. In Arunkumar v. Inspector General of Registration, (Madras High Ct., April 22, 2019), the court said in part:

For too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream....

When the right of the transgender persons to marry has been upheld by the Hon'ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act.

Deccan Herald reports on the decision.

NY Quaker Marriage Provision Cannot Be Limited To Quakers

In N.B. v. F.W., (NY County Sup Ct, Jan. 4, 2019), a New York state trial court rejected a husband's argument in a divorce proceeding that no valid marriage existed between the parties. The couple, who lived in New York throughout their 13-year purported marriage, had obtained a "self-uniting" marriage license from Pennsylvania and had a wedding ceremony in France at which the couple solemnized their own marriage in the presence of two witnesses and guests. The wife argued, among other things, that the marriage was valid under New York Domestic Relations Law Sec. 12 which recognizes self-uniting ceremonies among Friends or Quakers if solemnized in the manner practiced by their societies. In response, the husband argued that neither party to the marriage was a member of the Friends or Quakers.  The court responded:

The court's ability to hold the marriage as valid or invalid may not, however, depend on the parties' religious affiliation to members of the Friends or Quakers, or on the parties' level of religious observance. To hold otherwise would violate the First Amendment....

The court cannot deny a benefit or right to a person for not following any particular religious practice. To do so would violate the Establishment Clause. Lee v. Weisman, 505 U.S. 577, 596 (1992). Husband's argument would prefer religiously observant Quakers over individuals such as the parties here (or vice-versa, since Husband is seeking to "free" himself from a finding of a valid marriage that would have attached to him if he were religiously observant, under his argument).

Challenge Filed To Texas' Limits On Marriage Celebrants

A suit was filed last week in a Texas federal district court challenging the constitutionality of Texas Family Code Section 2.202 which limits those who can officiate at marriage ceremonies to members of the clergy and various judges.  The complaint (full text) in Center for Inquiry, Inc. v. Warren, (ND TX, filed 11/5/2018) contends that the failure to allow secular celebrants to perform marriage ceremonies violates the Establishment Clause, the Equal Protection clause and Art. VI's ban on religious tests. Center for Inquiry issued a press release announcing the filing of the lawsuit.

Israel's First Enforcement of Law Barring Jewish Weddings Outside Official Rabbinate

Haaretz reports that for the first time Israeli police have attempted to enforce a 2013 law that prohibits rabbis from performing Jewish weddings other than through the official Rabbinate.  Offenses carry a sentence of up to 6 months for conducting the ceremony and up to two years in prison for failing to register it.  Israeli police on Thursday booked Rabbi Dov Haiyun of Moriah Congregation in Haifa who was ordained by the Conservative movement, on charges of conducting a marriage ceremony of a person who is not eligible to be married under Jewish law. The complaint against him was filed by the Haifa Rabbinical Court.

UPDATE: Times of Israel (July 22) reports that the attorney general’s office, responding to widespread criticism of the detention, has now instructed police to cancel the summons against Rabbi Haiyun.