Reply #110: ... and as long as we're discussing ignorance

[iverglas]

On a related point, we had things like these:

Well, three cheers for the USA's separation of church and state.

It still needs to go. So do Christian and Jewish tribunals.

They shouldn't allow ANY "religious tribunals."

The point is that chruch and state need to be seperate even here in Canada.

Does no one, even in the great nation to the south where these phrases are learned at the grade one teacher's knee, know what "separation of church and state" MEANS?

It means that the state is not permitted to interfere in the practice of religion, by regulating it, prescribing it, proscribing it, favouring or disfavouring it, etc. etc.

Well, duh. Let's all open our eyes, now.

If the state PROHIBITED people from settling their private disputes by applying the rules that their religion directs them to live by, what might the state be doing?

If two Muslim businesspeople had no option, for settling a business dispute, but to go to court, the state would be interfering in their practice of their religion, because their religion directs them to settle disputes in a particular way. Offering a businessperson, who had been, say, cheated out of payment for a service, no choice but to swallow the loss (and perhaps go bankrupt?) or act contrary to his/her religious beliefs is, in modern rights theory, a violation of that person's right to freedom of religion.

If there is no overriding reason to deny such people the opportunity to settle their disputes according to the rules they choose, be they rules prescribed by their religion or by the law of some other jurisdiction or by a union-management collective agreement or whatever, then the state has no basis for interfering.

There IS an issue. There IS the question of whether there is an overriding reason not to permit the use of religious "law" as the rules applied in an arbitration. It arises particularly in family law matters, because of the possibility of oppression and exploitation.

That issue arises NOT only in respect of Islam. It very definitely arises in respect of Judaism, just for starters. Has no one here ever heard of a get?? Ask google!! In about a minute, you should have all the information you need to persuade you that the practice of Jewish men refusing to agree to a "get" -- a religiously-ordered divorce -- when his wife divorces him under public law (which a woman may not do under Jewish religious law) should be outlawed, because of the coercion and exploitation that women who want a "get" are subject to and because of the ostracism they will endure if they remarry without a "get", for instance.

http://www.jlaw.com/Articles/get_law1.html
Heh, cute; it may be that physical force may be used against a husband to compel the giving of a get, under Jewish "law" ("law", because "Jewish law" is no more law in the US than Shari'a would be in Ontario).

http://www.ukar.org/martin/martin12.html
Some of the, er, disadvantages women suffer under Jewish religious law, including examples in New York State.

But these people choose their religions. Jewish women, for instance, KNOW what the situation is regarding religious divorce. WE can't change the rules of THEIR religion. WE can't stop THEIR communities from ostracizing them. WE can't prevent THEIR husbands from withholding a "get" as a bargaining chip to coerce them into giving up custody, abandoning a support or property claim, etc. WE can only attempt to DISSUADE them from doing so.

Although ... interestingly, Canada has enacted legislation to protect women in such situations. (Divorce is under federal jurisdiction here; I have an idea that such legislation has been proposed or enacted in some US state jurisdictions, but don't know details -- yes, New York, e.g., has indeed enacted legislation to prevent a husband who refuses a "get" from obtaining a civil divorce.) In 1990, this section was added to the Act:

21.1 (2) In any proceedings under this Act, a spouse (in this section referred to as the "deponent") may serve on the other spouse and file with the court an affidavit indicating

... (c) the nature of any barriers to the remarriage of the deponent within the deponent's religion the removal of which is within the other spouse's control;

(d) where there are any barriers to the remarriage of the other spouse within the other spouse's religion the removal of which is within the deponent's control, that the deponent

(i) has removed those barriers, and the date and circumstances of that removal, or

(ii) has signified a willingness to remove those barriers, and the date and circumstances of that signification;

(e) that the deponent has, in writing, requested the other spouse to remove all of the barriers to the remarriage of the deponent within the deponent's religion the removal of which is within the other spouse's control;

... (g) that the other spouse, despite the request described in paragraph (e), has failed to remove all of the barriers referred to in that paragraph.

(3) Where a spouse who has been served with an affidavit under subsection (2) does not

(a) within fifteen days after that affidavit is filed with the court or within such longer period as the court allows, serve on the deponent and file with the court an affidavit indicating that all of the barriers referred to in paragraph (2)(e) have been removed, and

(b) satisfy the court, in any additional manner that the court may require, that all of the barriers referred to in paragraph (2)(e) have been removed,

the court may, subject to any terms that the court considers appropriate,

(c) dismiss any application filed by that spouse under this Act, and

(d) strike out any other pleadings and affidavits filed by that spouse under this Act.

That's all that the SECULAR authorities can do -- refuse to grant an individual, who is using religious rules to coerce or manipulate or exploit the other party, access to the secular courts for his/her own claims against the other party, whether to obtain a divorce or to obtain other relief in a divorce.

See what I might be meaning about ethnocentricity? For some reason, Canada is depicted as some backward, negligent nation in which nasty foreign men are to be permitted to exploit and coerce their wives, with violence if necessary, with the approval of our governments and courts. And yet, Muslim women are far from the only ones who are disadvantaged by religious rules, and Muslim religious tribunals are far from the only ones that apply rules that disadvantage women, and Canada acted more promptly than New York State to counter a particularly egregious example of such behaviour ... that had nothing to do with Muslims.


You may now add me, DUer since 2001, somewhat over 11,000 posts ahead of you at present, to your own "DUers I'd most like to have a drink with" list, or go hang out and say nasty things about me with all the folks at the various places on the net where folks who get ulcers when they think about ultra-left, ultra-feminist, ultra-internationalist moi hang out.

Cripes, as critical as I am of things that the US does, I never actually say things like

In my opinion, no religious tribunal has as place in Canadian law.

about how people in the US should arrange their own legal order ... not least because I actually am better informed about things USAmerican that I choose to talk about in public than to say such silly things.

Of course, if you wanted to actually read what was in the post of mine you responded to, and explain why you're still saying things like that after doing so, there's always the possibility that we could discuss something. Unless I'm just a troll.