As Senator Orrin G Hatch notes in his foreword to this volume, family law and religious liberty law are ‘two areas of legal scholarship that significantly overlap, yet all too infrequently interact’ (p xxii). There is considerable truth to this statement. Mainstream family law textbooks seldom mention religion but for brief allusion to the religious history of marriage law, perhaps some discussion of religious marriages and divorces and a usually concise note on the religious upbringing of children. Law and religion works invariably return the favour; mention of family law is rare and the few accounts that raise it fixate upon marriage law. True, there has been considerable attention afforded to the operation of religious tribunals and because the bulk of their work is to do with marital status that has attracted some attention, but even there the focus is on the extent to which the State should recognise and regulate the tribunals as such.
Wilson's large and impressive volume – all 26 chapters and more than 700 pages of it – seeks to redress this. It brings together experts in family law and experts in law and religion. Though their chapters are separate, a dialogue emerges throughout the book. This is an exhaustive tome but, as the choice of a US senator as the writer of the foreword and his use of the term ‘religious liberty law’ suggests, this is a very American book. There is a section on ‘International perspectives’ but this seems tokenistic; one might speculate that they are a knee-jerk response to a proposal reviewer's comment that the book was too US-centric. As strong as those chapters are, they are not in keeping with the remainder of the book.
This is a tour de force of how family law and religion interact in the US. It begins with two very useful chapters which explore religious rights in the US after a number of recent high-profile cases. The book then adopts a ‘cycle of life’ structure. The second section is dedicated to ‘Religious claims at birth’, a series of essays that straddle family law and medical law, and perhaps reflect that matters to do with religious beliefs concerning contraceptive access have come to the courts more often in the States than elsewhere. Nonetheless, reading these chapters as an overseas reader, it is striking how these chapters raise aspects of law and religion that are neglected elsewhere. And the absence of high-profile cases does not mean that this is not an issue on the ground in the lived lives of religious adherents, both as patients and as medical professionals. Perhaps law and religion as a field in the UK is too responsive to the whim of appellant case law, focusing too much on what has happened to be dealt with by the senior courts after the events.
The third section moves onto matters that are more familiar: to the interaction between family law and religion, with six essays on ‘Religious claims in childbearing’. These essays cover a significant amount of ground but largely coalesce around the question of what happens when religious beliefs and child welfare collide, to quote the subtitle of a chapter co-authored by the editor. An extremely interesting chapter by Brian H Bix on ‘Marriage agreements and religious family life’ seems out of place in this section, however, and would fit more comfortably, perhaps, in the section that follows, on marriage.
That marriage section is a direct response to case-law developments in the US. The focus is squarely upon the recognition of same-sex marriage. Chapters by Kari E Hong and Wilson himself question why the State should be interested in marriage status, an argument that has come to the fore on this side of the pond. Robin Bradley Kar explores the religious case for supporting same-sex marriage, providing another chapter that gives a comparative insight to an ongoing dimension of the debate here. In a characteristically provocative and erudite chapter, John Witte Jr explains how changing the legal definition of marriage to include same-sex marriage does not open the door to polygamy, a focus then developed in a doctrinal analysis offered by Maura Irene Strassberg. These chapters will quickly appear on reading lists for those interested in the changing interface between religion and marriage law.
The next short (two-chapter) section is on ‘Religious claims at the end of life’. This again feels more like medical law than family law, at least as those fields are understood here. It is followed by two more general sections. ‘Shaping the legal culture of the family’ features three chapters that provide valuable case studies, including coverage of the Civil Rights Movement and the Mormon Church, which all feel very specific to the American experience. These are fascinating chapters but their inclusion raises the question of why other faith communities are not given similar treatment.
As previously mentioned, the concluding section is on ‘International perspectives’ but, at three chapters long, it feels at best a footnote to the rest of the collection. The section begins, however, with an excellent comparative chapter by Patrick N Parkinson. How different this collection would have been had this been the opening chapter. Then follows two sound if random chapters on marriage in Israel and on religious clothing in France and the United States, presumably fulfilling the unspoken rule that every collection on law and religion needs to have some discussion of the law on religious dress.
Slight pedantic niggles aside, this is an excellent collection. For those looking at how family law and religion interact in the United States, it is a one-stop shop filled with everything they could possibly need. The chapters are authoritative, as reflected in the voluminous footnotes, and cover a wide range of topics and perspectives. The inclusive approach to contributors and the way in which the book blends experts from both family law and religious liberty law is to be commended. Indeed, this and the wide coverage given should ensure that The Contested Place of Religion in Family Law attracts a wide readership outside the US. Wilson's edited collection not only reminds us of the importance of the interaction between family law and religion but also underscores the need for dialogue and collaboration between experts in both areas and that the interaction between religion and the family covers wider questions than is often assumed.
