We must stop ignoring the elephant in the (religious) court room

"Nothing provokes tabloid sensationalism more than the word 'sharia' or the idea of sharia courts in Britain," said BBC Wales presenter Azim Ahmed in Faith in Justice, a recent episode of All Things Considered. The reference to tabloid sensationalism implies that objections to religious 'courts', including sharia courts based on Islamic religious 'law', are founded in bigotry rather than rooted in reasonable concerns.

The guests invited to discuss the issues were Dr Samia Bano, Rabbi Jonathan Romain and Professor Russell Sandberg. All are experts in the subject and the discussion was informative. However, the elephant in the room was the patriarchal nature of many religion traditions.

Rabbi Romain addressed the issue of traditional attitudes to women, outlining the differences in how the Reform and Orthodox Jewish courts would handle a situation where a husband refuses to grant a divorce. He acknowledged that the tradition gives this power to the husband but not the wife. He explained that the Reform Jewish courts will overrule the husband's refusal when the couple have had a civil divorce and his refusal to grant religious divorce is unreasonable, while the orthodox courts will not.

There was a time in the UK when it was easier for husband to divorce his wife than vice versa. Eventually, Parliament changed the law. The problem with religious law is that there is no direct mechanism for change, although religious bodies will often find ways to mitigate its worst effects as Romain describes.

Dr Bano described how the sharia councils provide a service to women seeking an Islamic divorce. An uninformed listener might wonder why it is only women that need this service. The answer is that under sharia, a man has a unilateral right to divorce his wife. This can be done by saying "I divorce you" three times. A man might ask a sharia council to provide documentation of his divorce, but he does not need their permission. A woman needs either her husband's consent or the approval of a religious judge. She has no automatic right to divorce. Thus, the remedy provided to women is based on a patriarchal religious tradition.

The Islamic Sharia Council, which worryingly is a registered charity, used to have a helpful explanation on its website of the reasons for the difference in treatment between men and women:

"For example, the right of divorce is vested in the hand of the man while she is allowed to ask for divorce either directly or through a Qadi (Judge). Why? Because the women are kind-hearted human beings who are governed by their emotions, a character strongly needed for bringing up the children. On the other hand, man is governed by his mind more than his emotions. He would think twice but more than that before uttering the word "Talaq" (divorce)."

The same website also contained fatwas stating that women should not go out without their husband's permission or refuse their husbands sex. One woman was informed that:

"a wife has equal rights upon her husband just as he has upon her, but his rights are a degree more then [sic] yours."

All animals are equal, but some are more equal than others.

These details are no longer on the website, although the web archive indicates that they were visible in 2011. It is possible that the Islamic Sharia Council has changed its views in the interim. If so, we would be happy to post an update on their revised position.

Rabbi Romain also explained that the Orthodox Jewish courts also had greater power within their communities because those who refused to follow their edicts face ostracisation. The same principles apply to other religious communities. Participation in religious courts and councils cannot be considered entirely voluntary when such strong pressures exist. An added complication is that while sharia is not law in the UK, it applies to varying degrees in Muslim majority countries which means couples may need a religious declaration for their divorce to be recognised. Given that adultery can be a criminal, and sometimes capital, offence in those countries, it is understandable that many Muslims want no uncertainty on the matter.

While Faith in Justice is worth a listen for anyone interested in the issue of religious courts and councils, its apparent reluctance to explore these controversies was troubling. Both Bano and Sandberg alluded to concerns on how religious "law" operates in the UK, but these were not explored in detail. This was probably partly down to time constraints but may also be connected to the presenter's assumption that public concerns are unreasonable.

Religious law in the UK is a vexed question for secularists. In principle, it could be argued that as long as it has no legal force there is no conflict. However, the reality is more complex and there are no easy answers. And with apparent growth in demand for religious 'courts' among other religious groups, it is essential that the issues be discussed frankly and that deference to religion should not obstruct discussion of its shortcomings.