Journal of Law, Religion and State - Volume 10, Issue 2-3, 2022

This article considers case law concerning parental refusal to consent to medical treatment of a child based on religious belief or conscience. The focus of enquiry is on three pivotal decisions of the Irish Superior Courts which will serve to chart the development of judicial reasoning in this contentious area of law. In the last few decades, Ireland has experienced significant changes in its population and attitudes toward religion as a result of increased immigration, multiculturalism, and secularism. This case law analysis reveals that there has been a shift from a test that examines the motivations or reasons for parental decision making to one that focuses on the effect on the child. This shift in focus raises concern about the extent to which the religious or conscientious objection of a parent concerning a child’s medical treatment will be considered in future cases. The present analysis provides an illuminating example of the way in which religion and the state can be in tension with each other.

35 Muslim-majority and 18 Muslim-minority countries formally integrate Muslim Family Laws (mfl s) into their legal systems. Both groups of governments have undertaken legislative reforms to improve the status of women/children under mfl s and strengthen the rule of law within their mfl systems. The existing scholarship does not address whether mfl s are more reformed or human/women’s rights friendlier in Muslim-majority or Muslim-minority countries. Employing an innovative methodological tool, the Muslim Family Law Index, this exploratory article surveys cross-national and historical trends in mfl reform (1946–2016). It shows that although Muslim-minority countries appear to have more “reformed” mfl systems than their Muslim counterparts, a closer analysis reveals that they have prioritized different types of legislative reform. The former favored exit rights, while the latter prioritized substantive reforms. The type and extent of interventions were strongly associated with colonial heritage, state-religion relations, international norm diffusion, women’s activism, and ethnoreligious diversity/tolerance. These findings have implications for studying multicultural theory, human/women’s rights, and democratization in the mfl-applying world.

The article offers an overview of recent United States court cases on the topic of religious family agreements, focusing in particular on cases seeking to enforce mahr provisions, provisions of ketubahs, and religious upbringing agreements. Overall, the recent cases display the tensions created by an intersection of separate concerns: interpretive, doctrinal, and constitutional. The cases ultimately display a cautious approach, including a general reluctance to enforce provisions where doing so might interfere with religious freedom or override the financial rights of vulnerable parties.