The Pew Research Center’s highly-respected Forum on Religion & Public Life has just produced an extremely interesting study of religious courts and tribunals: Applying God’s Law: Religious Courts and Mediation in the US. The study looks at how the tribunals of 15 religious groups – some of the major Christian denominations, Buddhism, Hinduism, Islam and Judaism – routinely decide internal matters and apply their religious laws. Each entry includes links to official documents and other resources.
The report points out that, far from being some kind of exotic rarity, religious courts are a very common phenomenon in the US and that, according to the calculations by the Canon Law Society of America, the Roman Catholic Church has nearly 200 diocesan tribunals handling an estimated 15,000 to 20,000 marriage annulments every year. Add to that the internal tribunals of other Christian denominations, batei din and sharia tribunals and there is clearly a considerable amount of private religious adjudication going on, notwithstanding the apparently-secular nature of the American legal system. The Supreme Court has consistently ruled that the secular courts may not interpret religious doctrine or rule on theological matters: rather, they must either defer to the decisions of religious bodies or adjudicate religious disputes on the basis of secular law.
The Pew Forum study is broad in its approach, whereas in 2011 Professor Gillian Douglas and her colleagues at Cardiff Law School produced a more focused study on one particular aspect of the activities of religious courts and tribunals in the UK. Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts examined the workings of three religious tribunals in detail – a beth din; a matrimonial tribunal of the Roman Catholic Church and a sharia council – and asked: “What is the legal status of these courts?” and “How do they operate in relation to marriage, divorce and remarriage?”.
The key findings of the Cardiff study were as follows:
- that each of the three firmly recognised and supported the ultimate authority of civil law in family law matters and none sought greater “recognition” by the state;
- that they derived their authority from their religious affiliation, not from the state;
- that their authority extended only to those who chose to submit to them;
- that so far as marriage/divorce was concerned, they were not “arbitrators”: rather, adherents to the particular faith made use of the religious court in order to obtain sanction to remarry within that faith;
- that there was a degree of “forum shopping” within the Jewish and Muslim communities because there was no hierarchical system of appeals;
- that the fundamental rationale for the grant of the religious annulment/divorce was to enable the parties to remarry within the faith; and
- that all three institutions encouraged parties to obtain a civil divorce, if applicable, before seeking a religious termination.
This is a relatively new area for research – and an important one. Much of the debate about the status of religious tribunals has verged on the intemperate, ever since Rowan Williams’s lecture at the Royal Courts of Justice on a cold night in February 2008: Civil and Religious Law in England: a religious perspective. We’ll never know whether the subsequent misinterpretation of his remarks was intentional sensationalism or merely the result of journalists misunderstanding a complex argument (well, we are talking Rowan Williams after all): but in any event, the work of religious tribunals is an area where the existence of good empirical data can only help to elevate the sometimes abysmal level of discussion.
As to the more general question of the justiciability of religious matters before the secular courts, it should be noted in passing that the stance of the domestic courts in England and Wales is very much in line with that of the US Supreme Court. Said the Court of Appeal in Khaira & Ors v Shergill & Ors  EWCA Civ 983 (on which we posted at the time):
“A secular court will not adjudicate on the truth of disputed tenets of religious belief and faith, or on the correctness of religious practices: those questions are non-justiciable, because they are neither questions of law nor are they factual issues capable of proof in court by admissible evidence. Judicial method is equipped to deal in hard facts objectively ascertainable, directly or by inference, from probative evidence: it is not equipped to determine the truth, accuracy or sincerity of subjective religious beliefs about doctrine and practice” [per Mummery LJ at para. 5].
In short, the secular courts will give effect to the decisions of a religious tribunal where the parties have appointed it as arbitrator under the terms of the Arbitration Act 1996 (see, for example, Kohn v Wagschal & Ors  EWCA Civ 1022): otherwise, the secular courts don’t “do God”. But how things will finally turn out in Khaira is unpredictable, because on 4 February our own Supreme Court granted the unsuccessful party leave to appeal: watch this space.