Embracing Tradition: Pluralism in American Family Law

Abstract

As the United States becomes a more diverse and multicultural society, law and legal institutions face new challenges. In the criminal law, there is the complicated question of when a defendant's conduct may be excused on the basis of a defense.1 For family law, there are issues posed for courts when disputes involve unfamiliar ethnic, religious, and legal traditions. Over the past two decades, courts around the country have encountered Islamic and Hindu wedding celebrations, Muslim and Jewish premarital agreements, and divorce arbitration in rabbinic tribunals. In these cases, courts have struggled to understand and accommodate the tremendous cultural and religious diversity of America today within a legal framework established long ago.2 The project of building a multicultural family law is complicated by the fact that American family law is based on specifically Christian norms. In England, before the colonization of North America, family law was eccle siastical law, and it remained within the jurisdiction of the church until the mid-nineteenth century.3 Although jurisdiction over family matters in the American colonies was in secular courts, the content of our early family