Professor Fournier publishes in a book entitled “State and religions”!

Following her participation in the international conference “State and Religions” at the Université catholique de Louvain(UCL)in Belgium, on November 25th 2016, Professor Pascale Fournier was approached by the Legal Publishing House ANTHEMIS to contribute to the writing of a chapter which would be included in a book that just came out. In bringing together UCL, the Université de Rennesand the University of Ottawa, this symposium aimed to explore three thematic axes: the foundations of relations between the state and religion, the coexistence of individuals’ universal rights and particular national regimes as well religious discrimination. These three themes have been studied in a comparative territorial perspective with Belgium, France and Canada. Given Professor Fournier’s expertise in comparative law and, more specifically, the interaction of religious and civil law, she was called upon to discuss the second axis with authority and detail.

Her presentation, entitled “Freedom of Religion, Laicism and the Right to Equality: Encounters with Devout Women”inspires the publication of this new article, known as “Law, Religion and Equality: Encounters with Religious Women”. The article examines, through the lenses of critical legal pluralism and feminist theories, the importance of refocusing the debate between freedom of religion and gender equality on its main protagonists: faith-based women. It is through the accounts of several religious women (Jewish and Muslim) living in France or in England that Professor Fournier puts her working hypothesis to the test. According to her, the recognition of religious marriage in a secular state has consequences for both the subjectivity of women and the distributive effects of the law.

Consider the case of Muslim women in England. Since England does not recognize Muslim family law, Muslim couples must, if they wish to obtain legal recognition of their marriage, hold a secular civil ceremony. If this formality is not fulfilled, the marriage is considered to be nothing more than a common law union. Moreover, it is estimated that nearly 80% of Muslim marriages are not registered and that number is steadily increasing overtime. This has disastrous consequences for the rights of Muslim women who cannot benefit from civil divorce proceedings and many other legal protections as well as economic benefits. On the other hand, British Jewish women, whose religious marriage is legally recognized by the state as a result of the Marriage Act of 1949, can challenge religious norms and thus have access to civil remedies, which would normally be denied to them in their respective religious regime. This phenomenon of legalization of religious law is also observed among religious women in France. For these women, Islamic marriage and Jewish marriage entail obligations that are deeply contractual and can be structured by methods of negotiation, transaction and enforcement mechanisms. For this reason, the French civil courts have, in the past, enforced the mahr(sum that the husband owes to his wife at the time of the divorce) according to the doctrine of the “contractual condition of marriage” and they have considered the refusal to grant the getas a “fault” involving the husband’s civil liability. In other words, the social existence of religious law legitimized by French civil law offers women of religious minorities a real bargaining power both in the private religious domain and in the secular civil domain.

As a consequence, the recognition of religious law is inevitable in a secular landscape if we want to ensure the protection of all citizens and especially the most vulnerable. Indeed, Professor Fournier’s research shows that even minimal interaction between religious and civil spheres in a secular state is desirable because it gives the law a malleability that is essential in order to protect the interests of religious women and those of their children. Lastly, if secular societies are open to an internormative legal dialogue, this will reaffirm the role of religious women as social actors of the law, as well as respond to the abundant feminist research that is committed to reinterpreting the inherent doctrines of Jewish and Islamic law.