Sometimes it is truly appalling to me how little I, or most people I know, really know about the country we live in or how people other than our immediate acquaintances actually carry on their social and cultural traditions. For example, just this week I discovered and learned that there are active Jewish Courts in the United States and the UK called “Beth Din” or “Beit Din”. These are exclusively Jewish Courts that grant divorces, settle contract disputes, and answer questions of ethnic identity according to Jewish Law. I think everyone should know about Beth Din and perhaps imitate and emulate their good example of setting up courts of consensual jurisdiction to maintain and reaffirm ethnic identity:
I find the concept of Courts of Ethnic Identity and cultural heritage preservation exciting, refreshing, and worth of emulation.
In my work since May 2008 with Dr. Kathy Garcia-Lawson in Florida, see e.g. 07-02-10_Appellant’s Opening Brief_KAGL_2nd and April 13 2010 KAGAL Rule 59(e) Motion for REVOCATION OF REMAND.doc- Kathy’s draft, we worked hard to try to develop a coherent theory of how constitutional civil rights, including free exercise and self-determination, moral and religious integrity, and a single-result-driven judicial system could coexist. We opted for challenging the single-result-driven judicial system (the single result in question being that ALL petitions for divorce MUST end in dissolution and splitting the nuclear family, and that within that framework, MAXIMUM division and redistribution of wealth was a desirable end, although one with slightly more flexibility in the shape and contours of outcome than the no fault divorce final solution to the curse of family life and commitment).
One topic Kathy and I briefly discussed but never achieved any coherence on was the idea that a Catholic marriage should be governed by Catholic rules regarding separation, annulment, and divorce, and that all Churches which sanctify marriage should bear independent and inalienable responsibility to judge, regulate, and if necessary supervise dissolution their creations.
All we concluded by way of constitutional argument in this direction was that the modern American Secular Humanist State should NOT substitute its OWN judgment and impose its OWN solution for ALL marriages, however created. We were aware that Catholic Canonical Law had traditionally governed the creation, maintenance, and dissolution of Catholic marriages (e.g. through a series of Church laws of long-standing modified or interpreted by Papal Encyclicals such as De Castī Connūbiī (Latin: “of chaste wedlock”) published in 1930 by Pope Pius XI, but it appeared that the Catholic Church had long since abandoned or abrogated its role in the “real world” regulation of marriage.
As an Episcopalian/heir of the Church of England, I was aware that the Church of England for a long time had governed and decided matters relating to marriage, baptism, legitimacy, and succession (inheritance) in England and even the American colonies. Ecclesiastical Courts had exclusive jurisdiction over Anglo-American divorce until 1670, and after that the House of Lords (which included “Lords Spiritual” as well as “Lords Temporal” and until the past couple of years functioned as the Supreme Court of the United Kingdom) shared ultimate jurisdiction to grant divorces in an ever widening circle of cases. In the United States (first as English Colonies and then Independent), these functions were gradually transferred to secular authorities, with the creation of completely non-ecclesiastical divorce courts in England in 1857. Some propose that modern “free” divorce originated in Holland (and the Dutch Colony of New Amsterdam on Manhattan Island), and this fact MAY be related to the fact that the Netherlands was a refuge for Spanish Jews fleeing the Inquisition—which after 1492 had abolished all traces of Independent Jewish or Moorish/Islamic cultural traditions in the Combined Kingdoms of Castile & Aragon.
But now, there are proposals both in England and elsewhere in Europe that Islamic/Sharia law could and should co-exist with English Common Law or European Civil Law. Such an innovation would decidedly BREAK the monopoly of the state on the administration of marriage and divorce laws.
While neither Dr. Kathy Ann Garcia-Lawson nor I are much in favor of the hopelessly misogynistic Islamic laws regarding the status and control of women, any crack in the monolithic block by which the State has supplanted ALL Churches in the administration of marriage and family life is at least facially consistent with our proposals.
I for my part have long maintained that marriage and the construction of the family and its internal organization and the transmission of ideology from parent-to-child, from one-generation to another, lies at the very heart of First Amendment and Ninth Amendment rights protected by the Constitution, so that NO state-licensing of marriage or administration of divorce should EVER be allowed. Individuals should be free to make their own moral and religious choices. PERIOD, with no qualifications aside from direct violations of criminal law (i.e. no religion in a civilized society can authorize systematic murder or theft [e.g. Aztec human sacrifice or cultic “thuggee” practices]). I would go so far as to say that questions such as “gay marriage” and “polygamy” are also questions of religious freedom so that Unitarians could preside over gay marriage and Mormons could reinstitute polygamy, although both practices have, in recent historical memory, been classified as criminal.
The ethnic diversity of the United States is now such that Mexican customs such as “rapto”. As Reported in the National Examiner on April 24, 2010: “The crime of kidnapping a woman for the purpose of marriage against her will, often raping her in the process, or “rapto,” as it is known in Mexico, is actually considered by Mexican authorities to be a minor crime and rarely prosecuted. A Mexican legislator has even called the practice “romantic.” Along with a tidal wave of illegal aliens, this medieval practice has now made its way to the U.S.” http://www.examiner.com/immigration-reform-in-national/illegal-aliens-now-committing-rapto-the-united-states
I first encountered “rapto“, ironically enough, in 1999 while researching Mexican Domestic Relations law regarding the question of relative and absolute nullity of certain marriages under Mexican Law. A marvelous Mexican Judge J. Apolonio Betancourt Ruiz of Durango, Durango, who just happens to share my birthdate (April 10) and exact age, helped me through this morass of Mexican jurisprudence (“Judicial Theses” as court opinions of binding precedent are called in Mexican law) and gave me “rapto” as the perfect example of a “relative nullity” in Mexican Martial law which is curable and by no means absolute: a girl captured and kidnapped by “rapto” must be set free after a certain time, and given the choice whether to stay or go. If she chooses to stay with her captor, then the “relative nullity” of a marriage by “rapto” is cured and the marriage so initiated becomes absolutely valid, whether or not formalized by a civil or religious ceremony, and may be entered on the “registro civil” subject to the same laws of support and separation as any other Mexican Civil Law marriage. So I ask, should Hispanic sectors of Los Angeles, Phoenix, and Houston be allowed to have their own local courts of voluntary jurisdiction in which “rapto” will be judged and evaluated by Mexican laws and traditions?
Because indeed, this is a modern problem but “Mediaeval” (as used in the National Examiner above) is the proper word for “rapto”. It is an ancient Indo-European custom well-remembered in such currently still-popular works as Richard Wagner’s “Der Ring des Niebelungen” (e.g.: the marriage of Hunding and Sieglinda was holy and sacred to Fricka in Die Walkure, while Gunther’s capture of Brunhilde with an amnesiac Siegfried’s help at least seemed morally acceptable to the Gibichungs in Goetterdaemerung. And of course, kidnapping for the purpose of marriage lies both at the root of the most ancient and revered epics in Western European history and literature, namely the capture and kidnapping of Helen as the cause of the Trojan War in Homer’s Iliad, and ultimately, albeit indirectly, of Odysseus’ travels in the Odyssey, and as the foundation story of Rome (the Rape [here “Rape” meant “Rapto“] of the Sabine Women by Romulus’ inexplicably all-male cadre of Latins). A kind of Rapto is even recognized in the Hebrew Bible, specifically Deuteronomy 21:
Marrying a Captive Woman
“10 When you go to war against your enemies and the LORD your God delivers them into your hands and you take captives, 11 if you notice among the captives a beautiful woman and are attracted to her, you may take her as your wife. 12 Bring her into your home and have her shave her head, trim her nails 13 and put aside the clothes she was wearing when captured. After she has lived in your house and mourned her father and mother for a full month, then you may go to her and be her husband and she shall be your wife. 14 If you are not pleased with her, let her go wherever she wishes. You must not sell her or treat her as a slave, since you have dishonored her.”
I have no idea whether the Beth Din/Beit Din Courts of the modern Jewish “Diaspora” recognize such rules of “rapto” for modern warfare. The question inevitably will be raised whether the 72 virgins allegedly to be awarded to heroic Islamic warriors who die during the Jihad, which category of heroes apparently includes some called and criminally stigmatized by some narrow-minded Westerners as “terrorists”, are voluntarily placed at the service of the fallen or whether they too are collected by an Islamic version of “rapto.”
Should cultural differences like the legal treatment of “rape” vs. “rapto” in Latin vs. Anglo-American culture be allowed and tolerated in the name of diversity? The example of the Jewish Beth Din/Beit Din Courts strongly suggests that in a pluralistic society, parallel court systems can be a refuge for both freedom and order, in that individuals could choose their social peers and “lifestyles”, but each element of diversity (Jewish, Islamic, Mexican, whatever) would still have its own norms and values and rules of internal conformity. Whether different legal traditions can coexist within a single country is a challenge to the concept of “nationalism” of course, but THE TRUE TOLERANCE OF DIVERSITY CAN ONLY EXIST WITH THE LEGAL AND POLITICAL ENFORCEMENT OF AT LEAST SOME DEGREE OF SEGREGATION.
There must be separate communities. It is inconceivable that diversity could be construed to mean, in the United States for example, that Jewish girls could lawfully be kidnapped according to traditions of “Rapto” by Mexican suitors, and that both cultural traditions would be treated equally by the American Secular Courts. But this is much like the result of “one marital law fits all” that the Secular Humanist State (Federal and State Governments) seeks to impose by saying that neither the state nor any church should prevent or prohibit gay marriage. So, could diversity be construed to mean in America that the state will back out of marriage and domestic life all together, but will serve to maintain a pluralistic order based on a criminal law which is “tweaked” or modified in different areas to serve different local communities? Obviously, this would mean that certain forms of maiming and torture would be permitted and not criminally penalized in those areas where Sharia law was allowed to predominate, but it is only fair that people who “opt into” Sharia law can only do so for themselves and their children, and not for anyone else’s.
Another strange but troubling corner where the boundary between criminal law and religious freedom has emerged is animal sacrifice in relationship both to Islamic practice and “witchcraft.” Voodoo sacrifice of chickens may seem like a minor issue, but larger sacrificial animals present a greater SPCA concern.
Way back in the 1970s when I was an undergraduate in what was then and probably still is the most culturally pluralistic city of the Old South, I recall a controversial incident in the married student housing at Tulane University in New Orleans where some Saudi Arabian Muslims had occasion to sacrifice a goat and then dispose of the remains. Witchcraft was once criminally penalized everywhere, but it is now popularized in movies and television and every aspect of “popular culture.”
A couple of years ago, in 2007, I had occasion to inquire about the status of belief in occult and paranormal practices in my own Church, the Protestant Episcopal Church of the United States, in Austin, Texas. I went to the rector of the beautiful St. Luke’s-on-the-Lake and asked him how the modern Church resolved such questions and his reaction was distinctly non-modern-sounding but very interesting. “Father Mike” told me that in the case of serious allegations of witchcraft or demonic possession, he was required by Church law to inform the Bishop of Texas (seated in Houston) who would then be required to call a special “Court of Inquisition” to evaluate the situation. Well, “Courts of Inquisition” sound kind of ominous and archaic—but why should they? The Continental Courts of Europe under the Civil Law operate mostly as “Courts of Inquisition” in the sense that the continental judges engage actively in fact finding (i.e. “inquiry”) rather than leaving the assembly of facts and legal arguments entirely up to the adversaries/litigants in each case, whether civil or criminal. Why should not more “Religious Courts of Inquiry” exist to investigate the moral demeanor or conformity of their members? No one in a free society would ever be compelled to join a Church, but if they choose to do so, why should a Church not be empowered to enforce its own norms?
It is well known, as of October 7, 2010, that the attractive young woman who happens to be a Republican Candidate for Governor of Delaware once admitted on television to having dabbled in Satanic Witchcraft. The reaction to this news in our supposedly pluralistic, diversity-admiring society is puzzling. No one congratulates or praises this candidate for having explored religious or philosophical options, to obtain a wider perspective on the human experience. But neither does anyone really condemn her. I have heard no serious invocations of Leviticus, “Thou shalt not suffer a witch to live” from any quarters—and after all, Christy O’Donnell is ad most a FORMER witch…. but would life be better or worse if there were standing “Religious Courts of Inquiry” which had the informational resources to investigate her actions and involvement? I wonder whether the modern Eur-American Jewish Beth Din/Beit Din has the power to investigate a modern “Witch of Endor” or similar experiments in necromancy.
Freedom and Individual choice are maximized where power is diffused among the largest possible number of interest groups and institutions, both governmental and non-governmental, and the competition of such groups may well maximize both freedom and responsibility by “cultural selection” analogous to “natural selection” in the theory of evolution.
Why should there NOT be English Courts for English people? Why should Episcopalians, Presbyterians, Methodists, Baptists, Unitarians, Rastafarians, and Atheists not all set up Courts to maintain the differences that make us who we are? There USED to be ecclesiastical courts in England which handled questions of divorce, legitimacy, and succession? Were the English people worse off for them? I think not. Obviously Jewish people appreciate the value of maintaining their heritage and ethnic identity, and so no matter how mixed up the rest of us get, there will always be at least this much diversity: Jews and Non-Jews. Will all the rest of us be under Sharia Law? I rather hope not—I suggest we work hard to maintain TRUE diversity inherent in our distinct and separate Anglo-American, German, Irish, French, Italian, Greek, Danish, Dutch, Polish, and Russian heritages…..
As I have repeatedly pontificated, the only way to maintain true diversity is by maintaining separation between groups. Integration—the “shake and bake” society of Hamburger Helper and Scrambled Egg culture and politics that paved the way to the Obama Presidency OBLITERATES all the unique and distinctive features of different cultures. IT IS APPALLINGLY ILLOGICAL to say on the one hand that “diversity is vital” and at the same time insist that everyone accept everyone else’s values and ways of behavior and “compromise” whenever there are disputes or conflicts as a result. For example, either we accept Sharia law or we maintain our own traditions of common law under the constitution. It is hard to see how the United States or United Kingdom or anywhere else could allow BOTH traditions to co-exist UNLESS there is absolute social segregation between the adherents of the Anglo-American tradition on the one hand and the Islamic tradition on the other. The Jews would appear to have taken steps to segregate themselves from other socio-cultural traditions in the Anglo-American world, and perhaps their success is worthy of praise and “imitation as the sincerest form of flattery.”
Pluralistic Courts for a Pluralistic society would definitely preserve genuine cultural diversity by allowing individual ethnic groups to maintain their own laws, traditions, and value systems.
This was, perhaps, the original purpose of the First, Ninth, and Tenth Amendments, and of “States’ Rights” generally, and the continuing purpose of allowing Native American (“Indian”) Tribal Courts under Title 25 of the United States Code. One of the appalling aspects of marital and domestic relations law today is how the Federal Government has been commanding, co-opting and coercing local compliance with national norms and goals of individual alienation, family disintegration, and wealth redistribution, so that there is almost NO real diversity between the domestic and marital laws of the states or even of the Indian Tribes protected by Title 25.
The Federal Government, largely through its exercise of power under the rubric of “Public Health and Welfare” has instituted and enforced mandatory interstate covenants and norms of cooperation on child custody, parental rights to visitation and obligations of support, and of barriers to and limitations on travel and residence. The upshot of the modern “homogenizing” domestic relations laws is that no one can escape from anyone, ever, and yet no one has to stay with anyone, ever. The family based on moral or religious commitment and “love” is by legislative fiat enforcing secular-humanist government-sponsored socio-cultural norms as dead as a doornail, at the same that welfare–wealth redistribution by equal if seemingly inconsistent governmental-regulatory command and control systems are becoming increasingly inescapable. Individual choice, individual decisions, even free will to be “good” or “evil”: “responsible”, or “irresponsible” is being slowly but surely abolished in the Brave New World of “Corporate Regulatory Socialism” in which the soul is dead or at least anesthetized at the same time that accumulation of worldly goods is constantly penalized and prevented—except as to the government, which increasingly controls all property and worldly wealth, and punishes even the mention of the soul or supernatural.
Historically, it was (and remains) logical that French-Acadians in Louisiana should have a different legal tradition from English-Puritans of Massachusetts and Rhode Island, and that these English-Puritans should have different tradition from the “Cavalier” Anglo-Elites of Tidewater Virginia, Maryland, and the Carolinas, which in turn would differ from the Hill Country and “Backwoods” cultures of Western Virginia & North Carolina on into Kentucky & Tennessee.
Why is the Federal Government’s Public Health & Welfare Policy enshrined in Title 42 wiping out ALL local variations in Family and Domestic Relations laws? Why is “homogeneity” and behavior conformity consistently enforced in a society constantly proclaiming the value of “diversity”?
There is no rational answer, and frankly, it should stop. Autonomy and self-governance should be returned to the States, the Indian Tribes, and all Ethnic Groups which wish to maintain their own traditional values and integrity by maintenance of their own separate customs and legal traditions. The safety value, the protection for diversity has to be separation, and a return to segregation of groups where all traditions really are “separate but equal.”
Biological diversity is the raw material upon which all physical evolution acts, and cultural diversity provides the elements which shape cultural evolution. In that the future is unforeseeable, all or at least MOST traditions deserve a fair chance, an equal opportunity to survive.
I think we can all agree and allow that Aztec style-mass human sacrifice and Hindu Thuggee practices really have NO promising future in the world AT ALL—these traditions and all which involve human slaughter can safely be cast upon the rubbish heap of history. But with regard to related questions such as abortion or rapto, perhaps state-by-state, tribe-by-tribe, religion-by-religion diversity should be allowed.
“Rapto” has a long tradition in European (and other) traditions of the world. But so does death by stoning for adulterers (as made famous recently in the Islamic Republic of Iran). My point is simply that we cannot have it ALL ways: we cannot value both freedom to follow your heart and “core” traditions AND try to celebrate diversity through homogenization. These things are just hopelessly contradictory.
The existence of Jewish Beth Din/Beit Din courts as courts of voluntary jurisdiction seems to me to offer a model upon which the rest of American and European Society can build in the process of accommodating and reinforcing real cultural diversity: take the state out of private life, and make the state a guardian only of boundaries, so that one group does not oppress another, even while each group sets its own distinctive standards for what constitutes oppression and what constitutes freedom.