The controversy over same-sex marriage in the United States, which gained prominence during the 2004 presidential campaign, did much to identify the American concept of marriage—how it is popularly conceived and what role the state plays in its definition. Although a majority of Americans are willing to classify same-sex relationships as domestic partnerships or civil unions, thereby conferring upon them many of the same benefits that married couples receive, a significant number of these same people balk at the idea of calling such unions “marriages” and support their prohibition by the state. Yet beyond the high-profile issue of same-sex marriages there are other, quieter debates that take place in this country and elsewhere around the world—debates that raise questions about the arbitrariness of legal definitions of marriage insofar as they rely on a set of moral assumptions that may not be shared by members of certain minority groups. Consequently, when state law has denied the possibility of marriage according to a different standard, and thus has prohibited individuals from engaging in cultural practices, there have been legal challenges that are both implicitly and explicitly based upon claims of cultural rights.
In Man and Wife in America: A History (2002), Henrik Hartog has examined the meaning that Americans have historically assigned to marriage. As Hartog notes, marriage has long meant “the legal union of man and woman, as husband and wife, for life.” In addition, a person may marry only one person at a time; multiple marriages are permissible only if they are sequential. U.S. law also prohibits marriages considered incestuous: A husband and a wife cannot be near relatives, although cousins, and occasionally even uncles and nieces, can marry in some jurisdictions. In the twentieth century the United States along with the United Kingdom added a new requirement: Individuals have to have reached a minimum age (that varies by state)—presumably to be able to consent to marriage, although those under that age could marry with parental consent. Finally, in addition to issues of law there is a social expectation in the United States that marriage should last for a reasonable period of time, because too brief a marriage trivializes the matrimonial enterprise.
Given the remarkable variety of marriage practices documented in Edward Westermarck’s extraordinary three-volume work, The History of Human Marriage published in 1922, it is unsurprising that some of them clash with these public policies. Polygamy, for example, has proven to be among the most controversial forms of marriage in the United States and elsewhere. When Muslim families migrate to the United States, immigration officers inform Muslim husbands that they may bring only one wife into the country, requiring that any other wives and children be left behind. Thus, the intention of government officials to protect the rights of women by refusing to recognize polygamy may actually work to the detriment of women in some situations.
Sometimes the issue is not simply that a man has more than one wife but that a wife accompanying him across borders is “under age,”—under the minimum age for marriage established by the state in question. In the Ezeonu case (1992), a doctor from Nigeria was prosecuted in a New York court for rape after he took his second “junior” wife to a clinic to obtain a birth control device. Although there was no question that this was a valid marriage according to Nigerian law, the judge rejected the well- established doctrine of “valid where consummated,” which requires the recognition of marriages properly contracted in other countries, on the ground that polygamy was deemed to be against public policy. Ezeonu’s attempt to raise a defense of marriage to a charge of rape proved unsuccessful, and he was convicted of rape.
Unfortunately, for litigants whose customary law authorizes different forms of marriage, the “against public policy” standard is a vague, ill-defined one. Nor are immigrants the only ones whose polygamous relationships are prohibited based on similar reasoning. Members of the Church of the Latter Day Saints (CLDS, also known as Mormons) have also argued that they should have the right to marry in accordance with their religious tenets. At the end of the nineteenth century, the U.S. Supreme Court rejected the notion that Mormons should be allowed to have polygamous marriages by drawing a sharp distinction between beliefs that are absolutely protected under the free exercise clause of the First Amendment and conduct that is not. Religiously motivated conduct, for example, marrying multiple wives, donning religious symbols, and sacrificing animals, is not afforded protection by invoking the principle of religious liberty. To allow each person to decide with which laws he will comply would lead to anarchy, the Court concluded. As it happened, the CLDS subsequently disavowed the requirement of polygamy. However, fundamentalist sects operating outside the auspices of the official Church are still known to have polygamous relationships. In Utah the American Civil Liberties Union has argued that this practice should be afforded protection under the principle of religious liberty.
Claims of religious freedom clearly represent one form of cultural rights claims. Although the United States is legally obligated to protect cultural rights, under which religious freedom is subsumed, litigants have opted to frame the cultural rights claim as a free exercise claim because jurists are largely unfamiliar with the jurisprudence of cultural rights. By contrast, the American legal community accepts the free exercise doctrine as an established legal principle.
In addition to legal debates about who is entitled to marry, there is also the question of whether the right to culture protects the ways in which couples marry. Protecting traditional marriage rites may be in tension with women’s rights, as in the many documented cases of forced marriage involving the kidnapping and abuse of girls. More extreme examples are cases of “honor killings,” which occur when a girl has failed to observe socially prescribed limits of behavior and thereby has jeopardized her eligibility for marriage. In such cases, limits on cultural rights claims are clearly necessary. Yet not all arranged marriages are forced marriages as parents often consult their daughters in the process of negotiating such marriages. Furthermore, judges can release women from such marriages if there is sufficient evidence of duress. Therefore each case must be scrutinized on its own merits before determining whether limits on cultural practices are warranted.
The refusal of U.S. courts to acknowledge different types of marriages can also be harmful to women. There are cases in both the United States and Canada in which the judge has been asked to recognize temporary marriages known as mut’a under Sharia law; such a marriage can be contracted from minutes to years. While the mut’a has been controversial, in Islamic jurisprudence there is no question that a woman in a mut’a relationship has legal rights that she lacks without it and that the children produced in the relationship are considered legitimate in the eyes of the law. The judiciary had to grapple with the interpretation of mut’a under California law in In. Re. Marriage of Vryonis. According to Fereshteh Vryonis, an Iranian citizen and a visiting professor at the University of California, Los Angeles, she and Speros Vryonis, Jr., the Director of the Near Eastern Studies Center, entered into a temporary marriage. When the relationship disintegrated, she filed for dissolution, attorney’s fees, spousal support, and a determination of property rights. Speros denied that a marriage existed. Although Fereshteh prevailed in the trial court, the appellate court reversed the decision, declining to recognize the mut’a marriage in the context of divorce. Failure to recognize the cultural rights claim, as here when the husband conveniently denies it, effectively undermines women’s rights.
While all nations are under an obligation to protect cultural rights, not all rites should be protected as cultural rights. Sometimes customs are better protected by means of other legal principles. Although one could interpret cultural rights to cover same-sex marriage, for example, it is unclear whether gays and lesbians have a truly distinct culture and even if they do, whether marriage is an integral part of that culture. While there may be many good reasons to permit same-sex marriage, equal protection or privacy rights may provide a stronger basis for this form of marriage than the cultural rights of sexual minorities. To determine whether to allow or disallow particular cultural traditions, the right to culture is only one of several normative bases of the argument, and not necessarily the most compelling.
There is also a question of the proper limitations that must be placed on the exercise of cultural rights when they conflict with other human rights. Even if a rite can be defended as a cultural right, other more fundamental rights, like those of women, children, and other vulnerable groups, may outweigh the right to culture. In general, the right to culture should be protected so long as the customs are innocuous. In the absence of any demonstrable harm, individuals and groups should be entitled to follow traditions that are important to their way of life, free of any governmental intervention.
|For a discussion of honor killings, see Leylâ Pervizat’s article, “In the Name of Honor,” as well as Zehra F. Arat’s response, “A Struggle on Two Fronts,” in the “Violence against Women” issue of Human Rights Dialogue.|