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In an unusual petition to the U.S. Supreme Court this month, Shawn Lecuona argues that her fundamental liberty interests, including her right to marry and to “worship God according to the dictates of her own conscience,” prevent the state of Texas from applying its no-fault divorce law to her marriage. In other words, she’s claiming that her right to religious liberty should prevent the government from granting her husband a divorce.
According to Shawn, she and her husband Mark are Christians who married in 1994 “as an expression of their mutual religious beliefs, in which God was both Creator and participant; and was a covenant sealed by the blood of Jesus.” By entering into a covenant marriage, the Lecuonas created an “inseparable, indivisible blood covenant between God, Mark, and Shawn… [that] is not subject to divorce.” Shawn is therefore claiming that the application of Texas’ no-fault divorce law to their covenant marriage inhibits her religious exercise and constitutes an “unwarranted intrusion of the state into this private and intimate relationship”—despite the fact that it was Mark, not the state, who initiated the divorce.
Before diving into why Shawn’s claim should be rejected, it’s worth noting that three states—Louisiana, Arizona, and Arkansas—have explicitly adopted “covenant marriage” laws (in 1997, 1998, and 2001, respectively). These laws allow couples to choose an alternative marriage agreement that requires them to seek premarital counseling with a religious leader or secular counselor, and preemptively eliminates certain grounds for divorce. Many more states have considered enacting covenant marriage laws, and while the movement has largely waned, it hasn’t died completely: the Texas 2018 GOP platform “urge[d] the Legislature to rescind no-fault divorce laws and support covenant marriage.”
Unsurprisingly, covenant marriage laws have primarily been advanced by the Christian Right; Louisiana’s bill, for one, was authored by then-State Representative Tony Perkins, now president of the Christian Right organization Family Research Council. And while some have argued that covenant marriage laws violate the First Amendment by harnessing the power of the state to enforce religious doctrine—an attorney with the ACLU of Louisiana, for example, noted that covenant marriage “makes it more difficult to get a divorce on non-Biblical grounds than on the Biblical grounds of adultery and abandonment”—none has yet been challenged in court on these grounds.
Despite the existence of covenant marriage laws, Shawn’s demand—that the state of Texas enforce a Christian “covenant” marriage on an unwilling party who has not signed away their right to a no-fault divorce—is clearly unconstitutional. The most basic objective of the Establishment Clause of the First Amendment is, after all, to prevent the government from imposing religious doctrine on nonbelievers. However, Shawn’s case may run into another, less obvious legal barrier: Texas’ “anti-sharia” law, which went into effect in 2017.
Texas’s H.B. 45 (codified at § 22.0041 and § 22.022 of the Texas Government Code), states that “litigants in actions under the Family Code involving a marriage relationship… are protected against violations of constitutional rights and public policy in the application of foreign law.” The bill doesn’t explicitly reference sharia or Islamic law (likely because a similar bill in Oklahoma that did specifically mention sharia was struck down as discriminatory in 2012). Nevertheless, the intent of H.B. 45 is clear. It was passed as part of a wave of legislation advanced by anti-Muslim organizations including the American Public Policy Alliance, which candidly states that the bills were “crafted to protect American citizens’ constitutional rights against the infiltration and incursion of foreign laws and foreign legal doctrines, especially Islamic Shariah Law”; the American Freedom Law Center, which, according to its website, “aggressively seeks to advance and defend our Nation’s Judeo-Christian heritage”; and ACT for America. The term “sharia law” is itself a misnomer, as sharia is not a codified system of laws but, as Amina Wadud wrote for RD back in 2011:
[Shari’ah] is really a lot like the Tao, or like Zen. It is the way, but not in a road-map-with-specific-details kind of way. It is not a long list of dos and don’ts. It is an idea that there is harmony in all of creation, including human creatures, our communities, and our relationships with each other, with the rest of creation, and with the Creator. It is also about doing that which will maintain that harmony. It is an ideal.
Nevertheless, according to the Southern Poverty Law Center, anti-sharia laws have been introduced in forty-three states and enacted in fourteen states since 2010.
In Texas’s case, notwithstanding the bill’s reference to “foreign law,” news sources and organizations from across the political and religious spectrum—from Breitbart to the Christian Broadcasting Network to the Council on American-Islamic Relations—referred to H.B. 45 as an “anti-sharia” bill designed to prohibit Muslims from relying on religious contracts or settlement agreements within marriage, divorce, and custody proceedings.
As noted, it’s already unconstitutional for a U.S. court to limit anyone’s legal rights through the application of religious or foreign law—making anti-sharia laws entirely superfluous. Nevertheless, the fact that only two years ago the Texas legislature affirmed the supremacy of civil law within family court proceedings only underscores that Shawn Lecuona’s attempt to impose Christian covenant marriage on her husband must fail.
While the Lecuonas’ case should be resolved quickly, the conflict between Shawn’s request for state enforcement of her Christian understanding of marriage and H.B. 45 raises larger questions about whose religious beliefs are, or should be, respected under the law. This is especially true for the two states—Arizona and Louisiana—that have enacted both covenant marriage laws and anti-sharia laws.
It is telling of the state of religious liberty in the U.S. that the campaigns to enshrine “covenant marriage” into civil law and to prohibit any reference to Islamic beliefs within marriage proceedings have occurred near-simultaneously, sometimes with the same supporters. Setting aside the much larger question of whether civil law should ever permit reliance on religious precepts, if the U.S. is to truly protect religious liberty, legal application of Christian and Muslim marriage contracts must rise or fall together.