Social and political philosophers have, as perceptively analysed by Susan Okin, failed to include relations within the family in their concepts of justice (Okin, Reference Okin1989). Perception of the family as a primary social unit, the preservation of privacy within the home and the assumption of a male head of a cohesive family all served to keep the family from any intrusive gaze. Engels did recognise the existence of gender hierarchy in the family but analysed it as an aspect of economic exploitation of labour in society, the demise of which was conditioned on the elimination of class differences, and did not analyse it as a free-standing matter of gender politics (Engels, Reference Engels2004). Nevertheless, belying the observations of Okin and of Engels, the conceptual foundations of human rights law, codified in the Universal Declaration of Human Rights in 1948, extended a Kantian right to equality and moral autonomy for every human person into the circle of the family. According to this concept of human rights, the family is to be based on equally shared power and responsibility between its adult members, irrespective of gender. In the human rights scheme, gender hierarchy is anathema.
This human rights construct of an egalitarian family conflicts, fundamentally, with religious edicts in the monotheistic religions. Although the concept of equality in the image of God is entrenched in the source books of the three monotheisms, they nevertheless actively promote gender hierarchy in the religious community and most especially in the context of the family. Orthodox or traditionalist proponents of religion do not dissemble regarding their commitment to the hierarchical family and indeed claim that the right to freedom of religion overrides the obligation to uphold the human rights of individuals within the family. At stake here is a conflict between a collective right to religious freedom, where it predicates the patriarchal family, and individual human rights of family members, in particular the rights to equality and autonomy of women and the rights of same-sex couples to freedom of choice and dignity.
There is considerable reluctance to delve into the clash between religious norms and human rights. The primary opposition comes, of course, from religious institutions and individuals. Religious norms are entrenched by deeply held belief in transcendental systems and by community identity and solidarity, which provide valuable psychological and social sustenance to members of religious communities. Religious institutions in the monotheistic religions have held and continue to hold considerable political power: the Holy See and the Organization of Islamic Conference have permanent observer status in the United Nations. Contemporary resistance to the dominance of human rights values over religious values was expressed in the Human Rights Council (HRC) where, in 2009, a resolution was passed, with the support of the Organization of Islamic Conference and the Russian Orthodox Church,Footnote 1 calling for promoting human rights and fundamental freedoms ‘through a better understanding of traditional values of humankind’.Footnote 2
Religious belief has been carefully guarded against individual freedom of thought through prohibitions on heresy, apostasy or blasphemy. At both the international and the state level, there have been measures to protect specifically religion against freedom of expression, through condemnation of religious defamation and through blasphemy laws.Footnote 3
There is resistance, however, not only by religious interests but also amongst many liberal commentators, to the imposition of human rights standards on families in disregard of communitarian claims for adherence to religious family norms. This is variously justified as respect for multiculturalism, promotion of pluralism or resistance to a secular hegemony. Much of this liberal discourse takes place in the context of fear that rejection of religious norms may be tainted with hatred of religious-ethnic minorities and may exacerbate the discrimination and violence suffered by such communities.Footnote 4 In the European context, it is often Islamic family law that is at issue and criticism of Islamic family law practices may be condemned as Islamophobia. Where Jewish law is at issue, critics may be accused of being anti-Semites.
The tension between concern for freedom of religion and human rights for family members was touched on by the UN Special Rapporteur on freedom of religion or belief in her 2009 Report. Alongside her more central enquiry into violations of freedom of religion, she pointed out that discrimination in the name of religious belief is ‘another worrying pattern’ and that this pattern is evident in laws that discriminate against women particularly in the field of personal law and also, in some instances, in the legalisation of violence against women in personal status law and regarding marital rape.Footnote 5 In her recommendations, however, while concluding that states should not allow activities which contravene human rights even if such activities are seemingly based on religious or traditional practices, she makes no specific recommendations regarding ways of eliminating discrimination against women based on religion as such.
It may be asked why, in view both of the patriarchal character of much traditionalist culture in general and the failure to achieve equality for women in secular families, the emphasis here should be on religion. My answer lies in the difference between the de facto failure of legal systems to implement equality in traditionalist and secular families and the de jure justification for maintaining patriarchy in religious family codes, which are given varying degrees of recognition by states.
It is the religions themselves which have, in the human rights era, self-identified as the core of resistance to change in the family. They have done so at the level of international law, which is a dominant source of egalitarian norms for the family. The centrality of religion in the backlash against equality in the family is clearly evidenced in states' reservations to the Convention on the Elimination of All Forms of Discrimination Against Women's (CEDAW) Article 16 provision for equality in the family, which are almost exclusively based on religious claims. The clash is revealed in judicial decisions of courts in liberal democracies and in international courts or tribunals, where stories of women and lesbian, gay, bisexual and transgendered (LGBT) individuals challenging their disadvantage under religious personal law are litigated.
The distinctive marks of monotheistic scriptural religions are clear: transcendental authority, a canonical text with authoritative clerical interpretations, norms for regulation of daily life and punishment for transgression. Religion is, hence, an institutionalised aspect of culture, with focal points for political power within society. These characteristics render religion less amenable to adaptive pressures. Within secular states, religious sects provide ‘a haven against social and cultural change … defend the eroding authority of the family, sacralize ethnic loyalties, provide barriers against rationalized educational techniques and scientific explanations of nature …’ (Fenn, Reference Fenn1978, p. 26).
It may be countered that religion is not monolithic and that change may be brought about and is indeed occurring on the basis of reform hermeneutics within the religions. Each of the religious codes has its shades of meaning, and interpretive reform, more consonant with individual human rights, has resulted in major reform movements in some branches of Christianity (Lutheran, Episcopal and Protestant) and Judaism (Reform and Conservative). In these movements there have been moves over the past fifty years to recognise women's and LGBT rights in religious leadership and to modify some aspects of religious family law. In Islam, although there has been no institutionalised reform branch of the religion, voices for reform are sounded by women's movements and by individual religious leaders, intellectuals or activists. Welcome as these intra-religious reforms to incorporate human rights may be, they nevertheless remain far from erasing patriarchy within the monotheisms. Orthodox Judaism, Catholicism, Evangelical Christianity, Russian and Greek Orthodox Christianity and Islam, both Sunni and Shia, have all retained the traditionalist patriarchal family model intact.
Finally, the reason the focus here is on religion is that it is religion, rather than traditionalist culture, which attracts deference in human rights discourse. The language of the International Covenant on Civil and Political Rights (ICCPR,) guaranteeing the freedom to have or to adopt a religion or belief of one's choice, and to manifest one's religion or belief, is clearly directed to the protection of religious belief systems and practices rather than cultural practices.
This article will argue that all three monotheistic religions would require a major revolutionary endeavour to exorcise their elevation of male power as the foundational principle of family in order to comply with human rights norms. The success of such an endeavour is feasible and it has already occurred with some success in certain branches of the reform movements of Judaism and Christianity. Indeed the integration of women's human rights and of LGBT human dignity into the social and legal codes of the monotheisms is the optimal mode for securing the future of the egalitarian family. This would allow a synthesis of the benefits which adherents to religions, men and women, derive from their membership in their religious communities and the crucial human rights to which they are entitled under international human rights law. It would allow women to rightfully claim equal religious personhood in their communities and in their families. Nevertheless, I will contend that, alongside any path of hermeneutic religious reform, there must be constitutional insistence on the primacy of secular human rights. Religious hermeneutics cannot be advocated as the sole route to equality and dignity in family living.
I. Monotheistic concepts and perceptions
It is frequently pointed out that the three monotheistic religions recognised from their inception the full humanity of woman, in imago dei (bezelem). Furthermore, there are edicts which are protective of women's welfare and preach compassion, restraint and respect for women. There are examples of women in the early history of the monotheisms who were leaders, judges and even military warriors. These examples provide a basis both for conservative assertions that the religions are beneficial for women and for feminist hermeneutics.
However, closer examination of religious texts and institutional development reveals that the monotheistic religions have persistently promulgated patriarchal gender relations. Women are traditionally excluded from the hierarchies of canonical power and from the holiest of rituals, reflecting the image of the deity as male (Gross, Reference Gross1996). A central feature of religious patriarchy is the sanctification of the hierarchically gendered family. The implication for women has been restriction of their autonomy, subjecting them to male power within the family, and controlling their reproductive role. Its implication for members of the LGBT community is condemnation and often criminalisation, as the very idea of same-sex relationships is deeply threatening for the hierarchically gendered family. While each of the monotheisms creates its own holy model for the patriarchal family, they are variations on a shared theme.
He shall rule over thee
The hierarchically gendered human family, over which a father rules, is a reflection of God the Father in Judaism: ‘Endure hardship as discipline; God is treating you as sons. For what son is not disciplined by his father?’ (Daly, Reference Daly1985). The Book of Genesis sets the narrative for the human family in clearly patriarchal terms. In this creation story, Eve was taken from Adam's rib and he named her Eve, conceptually reflecting the concept of male creator. The legal delineation of hierarchical relations in the family is explicitly laid down in Eve's punishment for her sin on leaving the garden of Eden: ‘Unto the woman He said … thy desire shall be to thy husband, and he shall rule over thee’ (Genesis 3:16). Women's duty of obedience is thus predicated by a form of penal law – their punishment for transgression against God, the Father, is expressed in their perpetual subjugation to the power of their husbands, his sons.
There is another version of Creation in Genesis: ‘God created man in his own image. In God's image he created him; male and female he created them’ (Genesis 1:27). This has been represented as providing an egalitarian alternative. However, this version itself incorporates a concept of the male singular in God's image and it co-exists with, rather than ousting, the Adam and Eve version, with no balancing Creation story in which woman is creator and ruler. Furthermore, attempts to read equality into the alternative version are belied by the myth of Lilith. Created by God as equal to man, she was Adam's first wife. When she laid claim to equal status, Adam attempted to compel her obedience and she left him, uttering the name of God (Dame, Rivlin and Wenkart, Reference Dame, Rivlin and Wenkart1998, p. 7). This assertion of female equality was not approved or celebrated in the myth. On the contrary, Lilith became the epitome of depravity, a blood-thirsty seductress, ‘demonstrating to women the horrible price of condemnation and isolation to be paid for choosing such a non-traditional feminine existence’ (Kamir, Reference Kamir2001, p. 5). The fate of Lilith teaches that women's claim to sexual equality lies beyond the pale of human decency and thus leaves us no ‘imaginable alternative’ to Eve (Lerner, Reference Lerner1986, p. 223).
Polygamy was permitted in the Bible, as evidenced by the wives of Abraham. However, Talmudic society was predominantly monogamous and, in the eleventh century, polygamy was prohibited de jure for Ashkenazim.Footnote 6 Remnants of polygamy remain evident in the allowing of bigamy for men, in certain situations, and in the asymmetry of penalties for adultery, with women's adultery resulting in mamzerut (which imposes restrictions on the offspring of the adulterous union for ten generations and more).Footnote 7 A wife is purchased in the marriage ceremony and her husband's ownership is demonstrated in his absolute patriarchal power to refuse divorce. Jewish law allows women to inherit only in limited circumstances. There are measures of protection for women in Jewish law: prohibition of marital rape, property and maintenance rights under the ketubah (unilateral binding promise by the husband made upon marriage) in divorce, custody rights and the right to abortion in cases of a threat to the mother's health (Berger and Lipstadt, Reference Berger, Lipstadt, Witte and van der Vyver1996, pp. 304, 310). These protections, important as they are, fall within the context of the patriarchal family; they provide protection and not equality or autonomy. The Jewish law rules on divorce are still applied in Israeli law, which confers jurisdiction on questions of marriage and divorce status to the rabbinical courts.
In Christianity, there was a reformative declaration of equality – ‘here is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus’ (Galatians 3:28). However, this concept was not applied to family relations in either the spiritual or the temporal sphere. The holy family consists of the father, the son and the holy spirit. Human godlikeness was male or asexual (Borresen, Reference Borresen1995). Mary is part of the holy family in a paradoxically virginal and maternal state: the Virgin Mother. Exempt from the original sin of Eve, she is removed from the arena of temptress.
Elizabeth Fox-Genovese, declaring herself Catholic and Feminist, has argued: ‘If anything, the Church celebrates women's ability to bear children as a reflection of Mary's having borne Jesus and thereby having redeemed Eve's trespass. And, given the unique position of Mary, Queen of Heaven, in Catholicism, it seems difficult to argue that a reverence for women's ability to bear children demeans and oppresses women in religion or theology’(Fox-Genovese, Reference Fox-Genovese1999, pp. 11–38). However, this ignores the division of women into virtuous and debased, with Christian emphasis on the connection of Eve's sin to arousing sexual awareness and the teaching that woman is the source of original sin (Gage, Reference Gage1893/1972). Women in a sexual relationship with men are inevitably tarred with the sin of Eve, rather than basking in the puritan glory of Mary. Elizabeth Cady Stanton, author of the nineteenth-century The Woman's Bible, rejected the Christian claim that the New Testament brought promises of new dignity and liberty for women and deplored the honouring of Mary solely as the human mother of Jesus (Stanton, Reference Stanton1898/1974, p. 113). Furthermore, there are indications of matrimonial patriarchy in the scriptures: ‘Wives, be subject to your own husbands, as to the Lord. For the husband is the head of the wife, as Christ also is the head of the church, He Himself being the Saviour of the body’ (Ephesians 5:22–32).
The Church in Rome, in the early days of Christianity, banned polygamy in order to conform to the Greco-Roman prescription of monogamous marriage (Hillman, Reference Hillman1975, pp. 17, 140). Subsequently, Christian marriage has been overwhelmingly monogamous, with the notable exceptions of American Mormons and the African churches. Nevertheless, canon-law marriage has retained measures reinforcing the patriarchal family. Christian marriage vows include, in many denominations, an asymmetrical vow of obedience by the woman. Christian teaching did not promulgate a prohibition on marital rape, and marital rape was not considered unlawful in Christian common-law countries until the late twentieth century.Footnote 8 Many branches of Christianity, such as Catholicism and Evangelism, prohibit abortion and contraception, thus exerting patriarchal power over women's reproductive lives. This is not merely a matter of universalist sensitivity to the life of the unborn foetus. The idea that life begins at conception and hence the foetus has equal rights to be balanced against those of the mother is not even a universal religious view but is rather a particular Christian view, neither accepted by all denominations or branches of Christianity, nor advocated by Judaism or by most Islamic authorities. Furthermore, Christian prohibition includes contraception, revealing the restriction of women's reproductive autonomy independently of the existence of a foetus.
Islam, unlike Judaism and Christianity, does not attribute characteristics of a father figure to Allah, and while the figures of Adam and Eve do appear in the Koran (as Adam and Hawwa), their story is not told in the same patriarchal narrative as Adam and Eve's. Rather, Islam creates the model Islamic family through imitation of the life of the Prophet, Mohammed. Mohammed's first wife, forty-year-old Khadijah, was his employer, whose age and wealth exceeded his. They signed a monogamous marriage contract, as was customary for many pre-Islamic groups in Arabia in the sixth century ce. After her death, Mohammed took numerous wives, reintroducing the practice of polygamy. The Koran specifically authorises polygamy in Sura 4:3: ‘And if you be apprehensive that you will not be able to do justice to the orphans, you may marry two or three or four women whom you choose. But if you apprehend that you might not be able to do justice to them, then marry only one wife, or marry those who have fallen in your possession.’ It has been argued that this verse is intended to restrict polygamy, since no man can treat a plurality of wives equally, but mainstream interpretation and the almost universal practice of Islam indicate that polygamy is widely accepted.Footnote 9
The Koran has four gender-neutral verses which indicate equality between men and women.Footnote 10 However, none of them refers to the relationship between men and women in marriage and, on the contrary, the patriarchy of marriage is entrenched in many verses: ‘As to those women on whose part ye fear disloyalty and ill-conduct, first admonish them, next refuse to share beds, and Last beat them (lightly)’ (An-Nisa 4:34); ‘Your women are a tilt for you (to cultivate) so go to your tilt as ye will’ (Al-Baqara 2:223; 2:228). The asymmetry in the gender power structure is implicit in the Koranic verses regulating the taking of a spouse, which are all addressed to the man, directing him how to take a wife and is underscored in the permissibility of taking a child bride.Footnote 11 The Koran accords men the power to divorce their wives unilaterally (Sura 4:20). Exhortations to the husband as to how to treat his wives, even if they counsel mercy, assume his absolute power over them. The Koran gives women a half share of the inheritance accorded to men (Sura 4:11) and, although an improvement on Jewish law, remains discriminatory. According to most juristic schools, rights of guardianship and custody belong only to the father or his family, in cases of the remarriage of widowed or divorced mothers (Nasir, 1990, pp. 172–207).
The patriarchal tenor of these verses is elaborated in the hadiths (Ghassan, Reference Ghassan1987, pp. 11, 23) where the wife's role of obedience is clearly established as a religious duty: the woman who dies and with whom the husband is satisfied will go to paradise; a wife should never refuse herself to her husband even if it is on the saddle of a camel. Al-Ghazali, one of the most prominent and influential philosophers, theologians, jurists and mystics of Sunni Islam, defines her role: ‘She should stay at home and get on with her spinning … she should take care of her husband and respect him in his presence and his absence and seek to satisfy him in everything … she must not leave her house without his permission and if given his permission she must leave surreptitiously … She should be clean and ready to satisfy her husband's sexual needs at any moment.’ Citing this quotation, Ibn Warraq concludes: ‘Such are some of the sayings from the putative golden age of Islamic feminism. It was claimed that it was the abandonment of the original teachings of Islam that had led to the present decadence and backwardness of Muslim societies. But there never was an Islamic utopia’ (Warraq, Reference Warraq1997).
Islamic patriarchy is evident in contemporary family law in many Islamic states, though there are variations of the particular Koranic rules enforced: polygamy is legal, Tunisia being the exception; women do not have freedom of movement without the express permission of a male family member; the severity of the criminal offence for killing women family members in the name of family honour is mitigated; inheritance for women remains half of that for men; and husbands have the power of unilateral divorce.
Homosexuality
Male homosexuality is abhorrent to the three monotheistic religions. This is an abhorrence which originates in the Torah: ‘[A man] shall not lie with another man as [he would] with a woman, it is a toeba [‘abomination’]’ (Leviticus 18:22); ‘If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads’ (Leviticus 20:12–14Footnote 12). ChristianityFootnote 13 and IslamFootnote 14 both adopted a similarly condemnatory approach to homosexuality. The idea of male sexual love is threatening for the hierarchically gendered family, calling into question as it does the natural state of affairs in which men sexually dominate women.Footnote 15
Religious opposition to homosexuality in the three monotheisms brings with it sometimes violent responses to proposals for homosexual marriage, for the adoption of children by LGBT partners, and for the appointment of gay priests or to gay pride parades. Only a minority of the branches of Judaism and Christianity have moved away from this rigid position. In many, but not all, Islamic legal systems, the religious prohibition of homosexuality is codified in law.Footnote 16 Some Islamic states, such as Indonesia, Jordan and Iraq, which preserve traditionalist religious law for women, have waived the prohibition of homosexuality, indicating that patriarchy may be more deeply entrenched in male control over women than in homophobia.
Variations on a theme
The conceptualisation of the patriarchal family is a common thread in the three monotheisms. While variations within and between them on this theme of the patriarchal family may reveal a potential for change on the pragmatic or interpretive level, the basic conceptual embedding of the hierarchically gendered family renders the task of hermeneutic human rights reform extremely challenging.
II. Secular human rights and the family
Human rights are the child of secular thought, based on androcentric rationalism rather than transcendental ontology and imbuing all persons with Kantian equality and moral autonomy (Arieli, Reference Arieli, Gutwein and Mautner1999). Women's right to moral autonomy and their equal status with men were recognised on the basis of secular human rights, although that recognition was delayed for more than a hundred years after the rights of man were proclaimed and guaranteed in the Napoleonic Constitution and the American Declaration of Independence. Women's right to equality was first, perhaps surprisingly, given legal force in the context of the family. In the US and England the married women's property laws, introduced at the end of the nineteenth century,Footnote 17 preceded women's right to vote,Footnote 18 and preceded the international recognition of women's human rights in the family.
Building on the philosophical insights of the Enlightenment, and after the early reforms in family law, international human rights law first promulgated an unequivocal right of women to equality in the family in 1948. The Universal Declaration of Human Rights, later reiterated in the ICCPR, established the equal rights of ‘men and women of full age’ to marry and to found a family, and their entitlement to equal rights as to marriage, during marriage and at its dissolution. The principle of equality for women in the family was elaborated in 1980 in CEDAW's Article 16, which obliges states parties to ensure, on a basis of equality of men and women, the same rights and responsibilities with respect to: entry into marriage; free choice of spouse; choice of family name; rights and responsibilities during marriage and at its dissolution; rights and responsibilities as parents, and with regard to guardianship, wardship, trusteeship and adoption of children; and the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property. International law recognition of LGBT rights as human rights was established in the jurisprudence of the European Court of Human Rights at about the same time, in 1981.Footnote 19
Importantly, there are clear directives at the international level subordinating cultural practices or customs to the right to gender equality: CEDAW's Article 5(a) creates a clear hierarchy of values, requiring states parties to take all appropriate measures ‘[t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’; ‘Cultural practices’ clearly include religious norms, (Raday, Reference Raday2003) and the HRC has determined that the right to freedom of religion does not allow any state, group or person to violate women's equality rights.Footnote 20 Accordingly, the CEDAW CommitteeFootnote 21 and the HRC have called upon states parties to prohibit polygamy.Footnote 22 There is full awareness in international fora that the concept of equality for women may clash with religious norms. Mary Robinson, as UN High Commissioner for Human Rights, put it very clearly, saying that ‘justifications which lie in the terminology of cultural and religious considerations impact mainly against the human rights of women’ (Robinson, Reference Robinson2000). States have highlighted the fact that the central site of the clash between women's right to equality and religious norms is the family by addressing reservations to CEDAW on the grounds of religious considerations, usually of Islamic law but in the case of Israel also of Jewish or Christian law, mainly to Article 16, which requires equality in the family.
In opposition to the primacy accorded by international law to secular human rights over traditional values that violate them, there is evidence of a backlash, as is demonstrated in the 2010 Resolution of the Human Rights Council calling for a renewed emphasis on traditional values.Footnote 23 The equality ethos in the family in particular has been explicitly attacked by ideological challengers. The Heritage Foundation, for example, an American Conservative think tank, has condemned the CEDAW Committee for ‘pushing an agenda that counters traditional moral and social norms regarding the family, marriage, motherhood, and religion’ (Fagan, Reference Fagan2001). Further, Elizabeth Fox-Genovese writes,‘… contemporary feminism, in its most radical and politically influential manifestations, has established itself as a resolutely, if not aggressively, secular programme. In particular, in declaring uncompromising war against men's alleged domination over women and women's alleged enslavement to children, it has discredited the ideals of service and sacrifice’ (Fox-Genovese, Reference Fox-Genovese1999).
Human rights secularism is under attack not only by political or religious conservatives, but also by liberal commentators. Three major critical themes emerge. The first is a thesis of symmetry between religious and secular values as eschatological ideologies representing secularism as a competitor on the ideological map rather than as a neutral facilitator of differing ideologies (Taylor, Reference Taylor1995; Horowitz, Reference Horowitz1996, p. 14). The second is the claim that secular intolerance constitutes a threat to peace, as evidenced either in secularism's utopian wars (Grey, Reference Grey2007) or reflexively, as a result of the religious fundamentalist violence which secularism incites (Almond, Appleby and Emmanuel, Reference Almond, Appleby and Emmanuel2003). The third theme is about secularism's role in suppressing multicultural diversity. There is a demand for religious pluralism, it says, which requires respect for religious autonomy as a legitimate choice for constitutional democracy. I have argued elsewhere that these arguments do not take account of the fact that secular human rights explicitly provide for the right to religious and cultural freedoms and that ‘secularism's utopian wars’ were not fought in the name of human rights (Raday, Reference Raday2003).
What is crucial to remember, and is marginalised or ignored in the liberal anti-secularist literature, is the impact of religious pluralism on women (Raday, Reference Raday2009), gay men and lesbians. Exceptionally, making religion's clash with women's human rights explicit, Norman Solomon observes:
‘[W]hereas anti-slavery consensus is strong enough for us to demand the abolition of slavery in any society that still endorses it on religious or other grounds, there may not in practice be a strong enough consensus for a parallel demand to be made for the equalisation of women's status.’ (Solomon, Reference Solomon, Ghanea, Stephens and Walden2007, p. 101).
Thus, amongst those human rights to be sacrificed on the altar of religion, women's rights are foremost. And, as is already clear, the primary site of women's subjugation to male power is the family.
Reviewing the inherent and essential patriarchal family at religion's root and the contemporary resistance of powerful monotheistic religious institutions to women's and gay rights to equality and autonomy in family life, it is clear that orthodox religious regulation of family relations is in essential conflict with human rights. In the absence of transformative reform of the three monotheistic religions, they cannot comply with international human rights law. Such reform is at present taking place only at the margins of the monotheisms, most noticeably in the reform movements of Judaism and Christianity, while billions of individuals live under the orthodox forms of religion which continue to sanctify and enforce patriarchy in the family. International human rights law has prioritised human rights over religious norms, most explicitly with regard to women's human rights under CEDAW. The conflict between religion and human rights is at issue also in the constitutional setting, and the courts are the current battlefield in which it is being engaged.
III. Addressing religious patriarchy – the role of the courts
The courts provide a public forum where conflict between religious edicts and international or constitutional human rights principles can be tested. There is a layered importance in court proceedings. They show that the clash of religious patriarchy with human rights is an issue of living law. In comparative terms, they illustrate the sameness and the variations between the three religions. In value terms, the judges reflect the normative values of the state or of the international community in the context of which their decisions are rendered.
Polygamy, adultery and divorce
Various aspects of patriarchal religious family arrangements regarding adultery, polygamy and divorce have been adjudicated in contemporary court settings. These three forms of patriarchal marital law are closely interrelated as the recognition of polygamy lies at the roots of asymmetry between husband and wife regarding adultery and divorce. In some courts, they have been found to violate women's human rights, in others they have not. Under some Islamic legal systems, for example, adultery by women has been penalised with stoning, which is still regarded as legal in some Islamic regimes, resulting in court sentences in Iran, Saudi Arabia and Nigeria. In 2009, Amnesty International condemned a new Indonesian by-law that endorses stoning to death for adultery and caning of up to 100 lashes for homosexuality, pointing out that this by-law is in flagrant violation of international human rights law.Footnote 24
Supreme Court decisions in the United States and India and recommendations of the HRC and CEDAWFootnote 25 have all regarded polygamy as violating women's human rights. Mormon polygamy was condemned by the US Supreme Court in 1890: ‘Bigamy and polygamy are crimes by the laws of all civilised and Christian countries … They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade women, and to debase man.’Footnote 26 The Indian Supreme Court, in 1995, refused to allow Hindu men who had converted to Islam to practise polygamy,Footnote 27 but in 1997 refused to strike down the practice of polygamy for the Muslim minority, saying pragmatically, ‘a uniform law though highly desirable, may be counterproductive’.Footnote 28
The Israeli Supreme Court, acknowledging the violation of women's human rights in the husband's power to withhold a get,Footnote 29 remarked that ‘the situation of a slave was preferable to that of a wife [refused a divorce], since even a slave would have been released after seven years bondage’. Nevertheless the Court has refrained from interfering in the statutory power of the religious courts–Jewish, Muslim and Christian–to determine the marital status of members of the three communities. On the other hand, the Supreme Court of Canada,Footnote 30 the French constitutional court and the European Commission for Human Rights each found ways to uphold Jewish husbands' prearranged agreements to give a Jewish divorce, and noted the discriminatory impact of the power of a husband to withhold a get.Footnote 31
Three categories of judicial response are illustrated in these cases. The first is full endorsement of the patriarchal religious regulation of adultery, polygamy and divorce, which occurs in the courts of theocratic countries. The second is validation and enforcement of women's right to equality, in international tribunals and in the courts of liberal democratic countries. And the last is an ambivalent mixture of the two, with rhetorical validation of women's right to equality alongside refusal to enforce it, as has been the case with the Israeli Supreme Court's approach to the Jewish get and with the Indian Supreme Court's approach to polygamy amongst the Muslim minority; in both these cases, the courts have adjudicated in interaction with a democratic legislature which yields to religious hegemony.
Matrimonial property and maintenance
Women's access to the resources of the family is limited in the property, maintenance and inheritance law of all three religions. Some of these issues have been adjudicated in Supreme Court judgments. In 1985, in Shah Bano, Hindu judges in the Indian Supreme Court unanimously upheld Muslim women's right to maintenance payments on divorce on the basis of Indian civil law, referring scathingly to Muslim husbands' power of unilateral divorce and the limitation of the right of a divorced wife to maintenance to the three-month period of iddat.Footnote 32 This decision was followed by Muslim community violence and a legislative override. In 1986, the Indian Supreme Court struck down unequal inheritance provisions in the Christian Succession Act of 1916, holding that the Indian Succession Act of 1925, which grants equal inheritance rights to men and women, governed Christians in Kerala.Footnote 33 In response, the Synod of Christian Churches has financed the drafting of wills to disinherit female heirs. In Bavli,Footnote 34 in 1994, Israel's Supreme Court upheld Jewish women's right to equal division of matrimonial property in divorce, even where the issue is under the jurisdiction of a rabbinical court. Many rabbinical courts ignore the edict and allow men to condition the get on women's waiver of their rights (Halperin-Kaddari, Reference Halperin-Kaddari2001, p. 348).Footnote 35
These decisions illustrate the limited power of the courts to enforce human rights in the family where religious institutions or groups of adherents are strong enough to force the hand of government and manage either to obtain new legislative regulation or to preserve their autonomous power to continue the previous patriarchal practices.
Control of reproductive autonomy
The clash between demands for the prohibition of abortion, based primarily on the edicts of some Christian denominations, and women's human rights to privacy, autonomy, personhood, equality or dignity has been a recurrent and passionately argued issue in courts on different continents. The US Supreme Court shifted, over three decades, between 1973 and 2007, from insistence on women's reproductive autonomy to allowing state legislatures to restrict access to abortion. The Court set out, in 1973, with the Roe v. Wade 7:2 majority championing a woman's right to terminate her pregnancy in the first trimester, before foetal viability, on grounds of privacy.Footnote 36 The response of many state legislatures was to propose ways to limit access to abortion. Nevertheless the Court held its ground and in Casey the Court in 1992 affirmed women's autonomy in a 5:4 majority opinion, with Justice Kennedy opining that ‘the liberty of women is at stake in a sense unique to the human condition and so unique to the law’.Footnote 37 In 2007, the 5:4 majority swung in Gonzales v. Carhart Footnote 38 to uphold the constitutionality of an absolute prohibition of partial birth abortion, even without a women's health exception, on grounds of ‘moral principles having their foundation in the intrinsic value of human life including the life of the unborn’. Justice Ruth Bader Ginsburg in dissent called this development ‘alarming’.
The German Constitutional CourtFootnote 39 held that the unborn have a right to life guaranteed by the constitution, that abortion is ‘an act of killing’ and the foetus deserves legal protection. It upheld ‘the precedence of the protection of the life of the child [in the womb] over the right of the pregnant woman to self-determination’. This decision was reversed by legislative policy. In contrast, the Supreme Court of Canada, in its 1988 R. v. Morgentaler Footnote 40 decision, struck down statutory restrictions on women's autonomy to decide on abortion, with Wilson J. commenting: ‘The right to “liberty” … guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life.’ The decision has been followed by legislative attempts to insert ‘unborn child’ wording into the criminal code for other offences, such as assault on a pregnant woman, which may be used later in a Charter challenge against abortion. In Mexico and Colombia, countries in which the Catholic Church has traditionally exercised great political influence, recent court decisions have held that legislation permitting abortion is constitutional.Footnote 41
No binding UN treaty includes an express right to abortion. In international forums, there has been a reluctance to address the topic. The Cairo Conference on Population and Development in 1994 adopted a programme of action, despite opposition by the Vatican and by some Muslim states, ‘to enable couples and individuals to decide freely and responsibly the number and spacing of their children and to have the information and means to do so and to ensure informed choices and make available a full range of safe and effective methods’. There is some attempt in UN treaty bodies to address prohibition of abortion as a health issue. Since 1998, the CEDAW Committee has, in concluding observations, frequently called on states to ensure that women are not forced to carry out unsafe abortions. The HRC ruled that failure to provide access to legal therapeutic abortion was a violation of the ICCPR.Footnote 42 In 2009, the United Nations Committee Against Torture (UNCAT) Committee expressed its profound concern about Nicaragua's strict ban on abortion, especially in cases of rape or incest. In the Council of Europe, there has been a move to finally recognise abortion as women's reproductive freedom in a 2008 resolution calling on member nations to decriminalise abortion, but there is, as yet, no binding obligation and five member states continue to prohibit abortion.Footnote 43
These attempts by international bodies to allow therapeutic abortion to protect women's rights to life and health have been condemned by pro-life Christian authorities.Footnote 44
LGBT rights
There are three levels at which the clash between religion and LGBT human rights has been reviewed in national and international courts. The first level is the prohibition of LGBT relationships; the second is the withholding of ancillary economic and social rights to which common-law spouses are entitled; and the third is the lack of access to marital status.
Courts in the UK, the US and Ireland upheld the criminal prohibition of homosexuality until the 1980s. The courts did not recognise the right of homosexual partners to privacy, equality and human dignity. In 1981, in Dudgeon, the European Court of Human Rights (ECtHR) took a clear stand that the criminalisation of homosexuality constitutes a human rights violation.Footnote 45 Nevertheless, in 1983, the Supreme Court of Ireland upheld the prohibition of homosexual conduct, basing its decision explicitly on the Christian character of Ireland: ‘From the earliest days, organised religion regarded homosexual conduct, such as sodomy and associated acts, with deep revulsion as being contrary to the order of nature, a perversion of the biological functions of the sexual organs and an affront to both society and God.’Footnote 46 In 1986, the US Supreme Court held, in Bowers,Footnote 47 that homosexuality was contrary to public morals and upheld criminal prohibitions of consensual sexual intercourse between adult males. In 1994, the HRC held that prohibition of sexual activity between men violated their right of privacy under the ICCPR.Footnote 48 It took twelve years after Dudgeon to decriminalise homosexuality by legislation in Ireland,Footnote 49 and by judicial decision in the US.Footnote 50 The striking down of prohibitions of homosexual acts in national legislation can hence be significantly attributed to the upholding of an LGBT right to privacy, in international courts and tribunals.
International courts have been slower to adopt a policy of upholding the right of same-sex partners to enjoy the same ancillary economic and social rights as common-law spouses. Between the years 1983 and 1998, the European Commission of Human Rights rejected seven cases brought by same-sex couples in the area of immigration and housing rights; in 1998, the European Court of Justice rejected free travel rights;Footnote 51 However, in 2001 the European Court of Human Rights accepted same-sex partners' tenancy rights on the grounds of the Article 8 right to respect for private and family life – the Court rejected the Austrian government's claim that denial of the rights protected the traditional family.Footnote 52 In the same year, the Human Rights Committee determined that a same-sex partner had the right to a survivor's war veteran pension.Footnote 53 Some national courts have upheld such rights. In 1994, the Israeli Supreme Court held that homosexual partners were entitled to workplace benefits given to common -law spouses and, although violent demonstrations were held by ultra-Orthodox Jews to oppose this holding, it has been applied to other ancillary rights of common-law spouses, such as pensions, in later court decisions.Footnote 54 In 2004, the UK House of Lords upheld homosexual couples' rights of equal treatment to heterosexual couples in succession rights to statutory tenancy, on the grounds that they had ‘exactly the same sort of interdependent couple relationship as heterosexuals’.Footnote 55
A small number of states have introduced the right of same-sex partners to marry. National courts have been divided on this issue. In 1998, the Constitutional Court of South Africa, acting on the Equality Clause of South Africa's 1996 constitution – the first constitution ever to include sexual orientation in its antidiscrimination provisions – unanimously overturned sodomy laws in the countryFootnote 56 and went on to rule in 2005 that ‘traditional marriage’, which prevented homosexuals from marrying, violated the right to equality.Footnote 57 The legislation in South Africa was amended accordingly.
At the international level, there has not been any case which has regarded gay marriage as a human right which must be recognised by states. In 2002, the HRC rejected the claim of same-sex couples to a right to civil marriage.Footnote 58 The closest which an international court came to recognising such a right was the 2002 decision of the European Court of Human Rights, in which a transsexual man wanted to marry a woman – the Court required the UK government to amend the birth certificate of the transsexual applicant and to grant him the right to marry a person of the sex opposite to his reassigned sex.Footnote 59 In 2010, however, the ECtHR refused to require Austria to permit gay marriage. Austria has a registered partners law, but the applicants wanted contract marriage and the Court held there was no violation of the Article 12 right to marry and found a family, because there is no consensus amongst Council of Europe states on this matter, which has ‘deep-rooted social and cultural connotations’.Footnote 60 International institutions clearly regard the right to marry as a highly controversial matter and this may well be in no small part because they hesitate to encroach on the religious monopoly on the concept of the family, well demonstrated by holy matrimony and white weddings.
On the courts
Court decisions in democratic countries have expressed a varying range of progressive rhetoric, egalitarian outcomes and, in some countries, passivity in the face of legislative policy endorsing religious patriarchy. Where courts have ruled in favour of equal property rights for women, they have in some countries, such as India and Israel, been greeted with religious protest which has brought about either non-enforcement of the ruling or a legislative override. In contrast, court rulings on LGBT rights, while they may have produced religious protest in the public arena, do not seem to have been overridden by legislatures.
Courts are part of a tapestry of different forces in a democratic society and they hold a pen, not a sword. Where there is insufficient political backing for them to be able to enforce human rights, the courts may act with self-restraint. Nonetheless, what is evident is that the courts in all democratic, non-theocratic countries have consistently acknowledged women's human rights in situations of a clash with patriarchal religious edicts. Furthermore, international decision-making has consistently not only acknowledged, but also enforced to the full extent of jurisdictional possibility, women's human rights in the family and the right of same-sex partners to privacy. An important difference between the state and the international levels of adjudication lies in the inability of religious lobbies to exert political pressure on the international decision-makers, directly or indirectly. Another difference is the lack of binding power of international bodies to give binding rulings in individual claims. Despite these shortcomings, the courts and international bodies remain vitally important for providing a public forum in which women's and LGBT rights in the family can be named and claimed, irrespective of the political will of government, the power of religious lobbies or the perceived social consensus.
IV. Religious pluralism or securing the human rights of family members
The monotheistic religions, in some of their foundational edicts and in many of their contemporary legal manifestations, have diametrically opposed concepts of the family to those required under the human rights regime. The monotheistic religions sanctify patriarchy while the human rights regime insists on equality. State obligation under international law and tenets of constitutional democracy require that the right to equality must prevail in cases of conflict with religious practices. However, this obligation and the requirement of state intervention to impose human rights entitlements on the religious family is anathema to the orthodox religions and the subject of intense disagreement amongst many liberal commentators.
All attempts to compromise at the normative level between group rights to religious autonomy and individual family members' rights to equality are doomed to failure. Discourse, delegation of procedural power or pluralist legal systems cannot reconcile these diametrically opposed views. The question will remain: Are individual family members to be protected against patriarchal family norms or not? This question poses a substantive dilemma: Is a woman entitled (in a way equal to a man) to receive a divorce (Judaism) or refuse a divorce (Islam); to an equal share of the matrimonial property; or to equal child guardianship and custody rights; and is a member of LGBT community equally entitled to choose his or her family relations as is a heterosexual person?
Much of the literature which calls for legal pluralism on the issue of family assumes the mutual consent of the spouses to the religious law of their community, asserting that recognition of the religious law fulfils the family members' desire to preserve their cultural identity. However, this assumption ignores the internal fragmentation of interests within the family and is clearly rebutted where the victim of patriarchy petitions the courts for equal family rights; in this case, there is patently no consent.
Where the individual victim of patriarchy does consent, there is no obvious justification for state intervention. The autonomy of the individual is the ultimate source of legitimacy in human rights ideology. Nevertheless, there are caveats as regards individual consent. Consent cannot be recognised as genuine when inegalitarian norms are so oppressive that they undermine the capacity of the family members of the oppressed group to exercise an autonomous choice to dissent. Such oppressive practices can properly be classified as repugnant, and consent will not validate them (Poulter, Reference Poulter1987, p. 589) even if they are authorised by religious edict–examples might include coerced marriage, domestic violence, or polygamy, where it forms part of a coercive patriarchal family system (Nussbaum, Reference Nussbaum2000, pp. 229–30).
Even absent repugnant practices, formal consent is not necessarily evidence of genuine consent in the context of pervasive discrimination. Individuals who consent to the perpetuation of their inequality within the religious/cultural community to which they belong often have little real choice but to accept their oppression. As Susan Okin wrote: ‘When the family is founded in law and custom on allegedly natural male dominance and female dependence and subordination, when religions inculcate the same hierarchy and enhance it with the mystical and sacred symbol of a male god … the opportunity for competing visions of sexual difference or the questioning of gender is seriously limited’ (Okin, Reference Okin1989, p. 66).
States must take a priori measures to augment women's autonomy and their power to dissent by the provision of an educational and economic infrastructure that will nurture their autonomy and ability to dissent from discriminatory norms. It is crucial to secure women's literacy and free access to information and to incorporate a core human rights curriculum in schools, including the right to equality in the family.Footnote 61 Furthermore, in order to be able to dissent from patriarchal family patterns, women need feasible economic options so that they are not dependent on patriarchal family support. Thus, the state must provide women with the right to own resources, to inherit property – including land – and to work in economically remunerative occupations. These measures may themselves require the overruling of religious family practices.
The state should scrutinise, ex posteriori, individual women's consent to inequality within a strongly patriarchal context and should be able to void it where it is not genuine, informed and free. Where women petition to withdraw prior apparent consent to inequality, their petitions should be taken seriously and such consent should be voidableFootnote 62 at any later stage, if and when the woman finds the terms of her traditionalist marriage unacceptable. An inalienable right of exit must be secured under the constitution. Thus, where women are already in a polygamous marriage and have ‘consented’ to it, they must be given the greatest number of viable alternatives possible for leaving it, should they later wish to do so. This would entail special provisions for divorce, maintenance, and the division of matrimonial property for a prior wife if she objects to an additional wife in her family. Similarly, where women are subjected to a discriminatory regime of divorce in their cultural or religious communities, they should be given the alternative of applying for a civil divorce governed by egalitarian family law rules.
V. For reflection
The clash between the patriarchal family in the monotheistic religions and the egalitarian family of the human rights regime is incontrovertible and deep. The drama of the contesting visions is played out in international and domestic constitutional fora.
The monotheistic religions give foundational sanctity to the patriarchal family, which violates the human rights of women and LGBT individuals. The monotheisms inculcate patriarchy into the family by the deification of male power, providing a powerful mechanism for perpetuating this form of social organisation in the face of change. It is hard to ‘divorce’ the holy fathers of the three monotheisms, each represented through a different narrative, from the foundational credos of the religions. Hermeneutics in the monotheisms are based on patriarchal symbols and source books, and hence there are no shortcuts to the egalitarian human rights family through the path of religious reform. Some feminists have indeed questioned as futile the attempts of religious feminists to try to square the circle of feminist reform of the monotheisms in view of their core patriarchy. Carol Christ, for instance, claims that the Bible's core message is one of intolerance, and that its core symbolism makes male domination appear normal and legitimate, a mirroring on earth of male authority on high (Christ, Reference Christ1987, pp. 59–60).Footnote 63 Many religious feminists, however, take the view that hermeneutic reform is to be pursued and encouraged. It is the view of this writer that the path of hermeneutical reform is of the utmost importance. One may ask of the monotheisms: ‘Whose religion is it anyway?’ Women are entitled to enjoy the social cohesion of their religious communities no less than men. They are entitled to equal religious personhood, without being forced to take a right of exit. The path may be a rocky one but it follows on a historical spectrum of feminist endeavour to gain equal citizenship in all areas of social, economic and political organisation.
Until such time as reform has occurred within and across the monotheisms, the potential for hermeneutic reform cannot justify postponing realisation of the right to equality in the family, with access to the courts to enforce international and constitutional human rights to such equality (Raday, Reference Raday, Brugger and Karayanni2007). Human rights law has extended the right to equality and moral autonomy to all family members, repudiating patriarchal hierarchy in the family. There is an international and, in most democratic states, a constitutional obligation to provide the right to gender equality in all aspects of family life. The clash between these human rights and religious edicts regarding the family has arisen in different jurisdictions vis-à-vis each of the monotheisms. International fora have consistently acknowledged the right of women to equality in the context of family and have disqualified the prohibition of LGBT relationships. Constitutional courts have often acknowledged these rights, sometimes enforcing them and at other times capitulating to religious dictates, integrated into their legal systems by their legislatures.
It seems clear, conceptually, that there must be constitutional insistence on the primacy of human rights and, where family members claim a right to equality or moral autonomy, constitutional tolerance of and deference to the edicts of the religious hegemony cannot be justified. This holds true for religious majorities as well as cultural minorities. It also holds true for traditionalist as well as secular, non-traditionalist families. Clearly, where members of secular families claim their human rights as family members, their entitlement derives both from principles of equality in the family and also from freedom of conscience. It should, however, also be clear that, where individual claims are directed by members of traditionalist families to the constitutional authorities, their right to enjoy equality in the family is vested in them as citizens of the constitutional state and must be upheld, whether by bestowing an effective right of exit or by enforcing egalitarian options within the religious framework. Constitutional deference to religious edicts is not an acceptable alternative, as it would signify the silencing of religious dissent and denial of constitutional support for the quest for equal religious personhood.
The goal of human rights may be clearly defined but the route to protection and fulfilment of those rights in the family is strewn with challenges. The opportunity for intervention is limited to openings presented by the secular or by those individuals within the religious community who are sufficiently empowered and motivated to dissent. How do women or same-sex partners in religious communities acquire the strength to insist on change from within and bring about the reforms which will allow them to claim their religions and transform them? Or, for those who choose to exit, can state support provide them with the economic wherewithal, the community environment and the safety from revenge essential to the feasibility of exit?
International and constitutional human rights law for members of families is only the beginning of a long struggle for justice in the family, but it is an essential beginning.
