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Hastings International and Comparative Law Review

Authors

Julia L. Ernst

Abstract

In many countries, governments have permitted the application of religious laws and have delegated judicial authority to religious courts. These practices may violate women's human rights for at least four reasons. First, women are barred from leadership positions within many religious institutions, and are therefore prevented from helping interpret the religious precepts and develop the law that is being applied by the religious courts. This exclusion of women violates their right to participate in governance, democracy, and decision-making, which are essential components of law-making. Second, women are excluded from serving as judges on religious courts, thereby calling into question the impartiality (both actual and perceived) of these tribunals. Third, the law applied by religious courts is frequently discriminatory against women, e.g., in the area of family law. This violates women's right to equal protection of the law and to nondiscrimination. Fourth, considering the fact that the law applied by religious courts is based upon a particular religious interpretation held by the judges, this may be a violation of the right to the religious freedom of the parties appearing before the courts when the religious beliefs of the parties differ from those of the judges.

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