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The United States’s Uninvited Guest: Legal Pluralism

The United States’s Uninvited Guest: Legal Pluralism

The United States has found itself on a cultural breaking point. Currently, two major opinions are coexisting—and clashing heavily—in political society. The first is that the U.S. Constitution prohibits the establishment of an official religion, and in larger interpretation the establishment of the U.S. as a “Christian nation”; the second is the prospect of expanding normative and legal pluralism in the U.S., in favor of legislation determined by Christian values. The issue is more complex than it might initially seem; does the installation of Christian laws make a nation Christian, and did the Founding Fathers want such a thing at all? Although the Fathers forbade an established religion, some politicians argue that this does not negate the presence of Christianity in the government overall. This work argues that expansive legal pluralism in general family law has no place in the United States, not only because of the diverse and non-Christian population of the nation, but also because language in the Constitution and philosophical background of the Founders indicates it was not their intention or desire to found a Christian nation, either officially or informally.

It is important to first determine precisely what legal and normative pluralism mean. Norbert Rouland defines legal pluralism as, “the multiplicity of forms of law present within any social field”. In extension, John Griffiths defines the term as:

[O]ne in which law and legal institutions are not all subsumable within one ‘system’ but have their sources in the self-regulatory activities which may support, complement, ignore or frustrate one another, so that the law’ which is actually effective on the ‘ground floor’ of society is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism and the like.

A functional example of a culture with recognizable legal pluralism is a country with active Sharia Law. An example discussed here will be Jordan. Now, in the most simplistic of terms, Jordan operates with both Sharia and civil courts. Sharia courts have jurisdiction over personal and familial matters such as Diya and matters concerning Islamic Waqfs. The Personal Status Law of 1976, still enforced today, is also based on Sharia law. However, the Sharia courts are meant for the Muslim population of Jordan; a non-Muslim party can only be taken to court in the Sharia system if he or she consents to submitting to the jurisdiction. Non-Muslim Jordanians subscribe strictly to the civil court, unless they choose otherwise.

Normative pluralism simply dictates “a plurality of bearers of value”. The idea is that there is ultimately one primary value; in the case of the U.S., the likely goal of normative pluralism for some lawmakers and citizens is that that value is Christian morality.  Although everyone can be Christian in different ways, and to varying degrees, ultimately that single religion, or single value, prevails amongst a plurality. While normative plurality works clearly within demographics, it is not so easily applied to the entire United States.

In October of 2010, Delaware U.S. Senate candidate Christine O’Donnell questioned the presence of a separation of Church and State being mandatory in the U.S. Constitution. Of course, she was not entirely misled in her questioning: the specific language of “separation of Church and State” does not actually appear in the founding document. In fact, the concept wouldn’t be realized for several years later by Jefferson in a letter. What the First Amendment does say is that the government shall make no law “respecting an establishment of religion or prohibiting the free exercise thereof”. So, if one only considers this particular line from the First Amendment as representative of the Founders’ full opinion, then it is reasonable to assume that while the United States cannot declare an official religion, the inclusion of religious principles, Christian in particular, are not by any means forbidden.

However, this singular reading would be a mistake. The First Amendment is essentially a written guarantee that the government may not compel nor prohibit the exercise of religion in its state. It is as important to note this distinction, as it is to note that the Founders likely did not intend an atheistic nation. Rather, that men and women would practice their religion of choice in their private lives, without the interference, guidance, support, or opposition of the government. After all, the original Puritans of North America had fled religious persecution of a similar nature in England only a century or two prior.

If the value of private practice is maintained, then, normative and legal pluralism in family law cannot reasonably exist in the United States. For while individual households are free to worship at their leisure, protected by the United States, they cannot also be free to dictate the practices of others by legal declaration. The difficulty is two-fold, of course. First, that the U.S. has become vastly more diversified in culture and religion since the Founding Fathers first wrote down their ideas on the conceptualization of their new nation. The second, that it seems rather unlikely that the Founders, spurred on by hopes of religious and economic freedom, and inspired by the ideology of the Enlightenment, would have condoned Christian superiority and dominance at the expense of others.

Attempting to interpret the will of the Founding Fathers is a risky and elusive effort. To guess the wills and opinions of men who cannot be directly asked is a perilous endeavor, but perhaps it is a venture worth pursuing. After all, there is no doubt that the Enlightenment influenced the Fathers—Jefferson alone, in his devotion to the philosophies of John Locke, is evidence enough of it. In one correspondence, John Adams wrote, “Every Species of these Christians would persecute Deists, as soon as either Sect would persecute another, if it had unchecked and unbalanced power. Nay, the Deists would persecute Christians, and Atheists would persecute Deists, with as unrelenting Cruelty, as any Christians would persecute them or one another. Know thyself, Human Nature!”

Adams’s letter, then, returns us to the religious and political speculations of Senator O’Donnell. In her turn with Democratic opponent Chris Coons, she likely thought she was being clever—for Coons could not reasonably argue that the Constitution claimed a separation of Church and State. But that was 2010. Today, although the sentiment of the Christian nation remains, the discourse surrounding that ideal has morphed. In Rafael Cruz’s A Time for Action: Empowering the Faithful to Reclaim America, Rafael’s son, Ted Cruz, wrote the following in his epilogue to the work: What we are really seeing is an increasing hostility to religious liberty, and to Christians in particular”. Given the lack of significant anti-Christian terror in the U.S., it can be largely assumed that this ‘hostility to religious liberty’ may well be the backlash to the assumption that U.S. law should be dictated by Christian religious platforms.

It is worth noting that many of the issues in the U.S. can be summarized by a lack of precision of language. If violation of religious liberty is defined by an inability to dominate U.S. law with that same religion, then the concept of liberty itself has been deeply misconstrued. Religious liberty in the U.S., after all, is the right of individual and private practice. There is, in fact, an argument to be made that the religious liberty of non-Christians is violated when Christianity dictates the decisions of lawmakers concerning the masses.

A separation of Church and State is not demanded by the Constitution, but it is an implied necessity. As evidenced by lawmakers concerning the legislation surrounding abortion, many find it difficult to disassociate their faith from their authoritative powers. In January of 2016, Ted Cruz attended a pro-life rally, accompanied by many other pro-life leaders, including Iowa conservative leader Bob Vander Plaats. At the event, Vander Plaats said, “I don’t know about you, but I know about me, and 2016, this country hungers and thirsts for a spiritual revival. To turn our hearts back to God, his principle and his precepts”. Cruz himself stated, “Every human life is a precious gift from God and should be protected from the moment of conception until the moment of nature death,” which wouldn’t be such a complicated thing—he is, of course, entitled to hold any given opinion—except that he is also running for one of the most authoritatively powerful positions in the entire world. Cruz and Vander Plaats hold similar opinions to many in the pro-life crowd; their collective voice seek to eliminate Planned Parenthood as an accessible health center for women, and more importantly, to eliminate abortion as a legal medical procedure for those in the U.S. seeking the service.

Politics aside, the issue here is not one of opinion, religion, or even autonomy. It is an issue of language. Private practice is no longer private when one seeks to eliminate the right to choice of other individuals because of their personal prerogatives. An argument exists that the very legality of abortion violates the religious liberty of some Christians—however, this position is not without its fallacies. The primary one of interest here is that this sentiment does not fundamentally align with the nation that the opinion exists in. If the possession of certain rights violates one’s sense of personal liberty, and only nationally enforced laws of religious foundation can right one’s sensibilities, then the United States cannot be a nation of contended residential choice.

Legal plurality in the U.S. simply does not align with the language of its foundations, whatever the current interests of contemporary Christians may be. Even if the Fathers did not declare a separation in those precise words, the first Amendment is not vague on its demands concerning a limitation of religious imposition on others. If legal decisions such as abortion and the institution of marriage are determined based predominately on the religious values of a demographic, then those legislators are in violation of the intentions of the Constitution. The religious prerogatives of politicians cannot determine the lives and decisions of the masses, particularly if there is not a normative pluralism amongst the entire population in favor of such a trend.

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