Tuesday, September 20, 2005

Ontario to outlaw faith-based arbitration

Last week, the Government of Ontario promised to outlaw the use of faith-based arbitration to settle family disputes.

This story is a obvious candidate for my blog:  religion, law, and politics are among my preferred topics, and I often post on events in Canada which are likely to interest readers elsewhere. But this is a complex story and I needed a chunk of time to address it adequately. A little belatedly, here is my account of the issue.

Background

The background was succinctly reported by the Globe and Mail (republished at Rabble.ca):
Ontario's Arbitration Act from 1991 provides for voluntary faith-based arbitration to resolve civil and family-law disputes. This allows Muslims, Jews and other religious groups to use the principles of their faith to settle matters such as divorce, inheritance and custody outside the court system.

In 2003, Syed Mumtaz Ali, a retired Muslim lawyer, established the Islamic Institute for Civil Justice, with an aim to train imams and religious scholars to resolve civil dispute in the community, a process already under way informally.

His announcement prompted the Ontario government to appoint former NDP attorney general Marion Boyd to review the Arbitration Act. She concluded there was no evidence women were being discriminated against in faith-based arbitration and recommended the existing arbitration system be strengthened.
International protests

Prior to last week’s decision, the Ontario government was reviewing Ms. Boyd’s report. Meanwhile, protests were occurring, not only in Canadian cities, but also in Paris, London, Stockholm, Amsterdam and Düsseldorf.

If Ontario had endorsed sharia, it would have been the first Western jurisdiction to take that step. Protesters saw it as a dangerous precedent. The Globe and Mail reported,
Homa Armojand, co-ordinator of the campaign, told about 300 protesters at Queen's Park that the lobby to allow faith-based arbitration for Muslims in Ontario is "not a coincidence, but part of a global move pushed by leaders of political Islam who need validation from the government of the West."
Objections to sharia

Sharia is a body of law governing every facet of life (presumably meaning there's little regard for a private sphere beyond the reach of legal authorities). It is based on Islamic principles, derived from several sources, including the Qur'an. Notwithstanding the fact that it is understood differently in different Muslim nations, critics say it is inherently discriminatory toward women:
  • male heirs receive a greater share of an inheritance than female heirs;
  • husbands, not wives, may initiate divorce proceedings;
  • in divorce cases, fathers are generally awarded custody of daughters who have reached the age of puberty; and
  • where it is taken to an extreme, sharia provides for the stoning of a woman found guilty of adultery, or the marriage of girls as young as eight years old.
In theory, faith-based arbitration (which is already practised) must comply with Canadian civil law. Decisions which are contrary to Canadian law may be appealed. But, according to an article at blogcritics.org, critics
point to the fact that so many Muslim women are new immigrants who do not speak the language and have little understanding of their rights. It is feared this will lead them to comply with what ever rulings are handed out by the religious council deciding their case, no matter how much they suffer for it.

They also point to how the Orthodox Jewish system has been used against women in the past, to prevent them from getting a civil divorce. Under Jewish law a woman must be granted a religious divorce or she will not be able to remarry and any future children will be considered illegitimate. Men have coerced women into not applying for alimony and child support by threatening not to give them a religious divorce.

To a devoutly religious person these sorts of threats are very powerful. If carried out they will make her an outcast in her own community.
Note that blogcritics.org broadens the criticism to include the Orthodox Jewish tradition. Opponents of sharia argue (with some justification, in my view) that all conservative religious traditions subordinate women to men.

Relation to provincial law

Canada, like the USA, has a federal system of government. Marriage is within provincial jurisdiction. Provincial governments set the standards concerning who can perform marriages, what the fees for the services cost, and what exactly constitutes a wedding ceremony. Where a marriage breaks down, it is up to the province to enforce divorce agreements. Blogcritics.org explains:
If a parent is negligent in fulfilling his or her requirements under the terms of the divorce agreement, it is the province that imposes penalties. Lack of child support, failure to comply with custody, and visitation orders, and alimony are all under the jurisdiction of provincial law.
Obviously this creates the possibility that the state may be called upon to enforce the faith-based decision of an arbitrator.

Ontario’s decision

Last Sunday, the Premier of Ontario decided it was time to stamp out the growing controversy. CTV news reported:
Ontario Premier Dalton McGuinty says there will be no sharia law in his province and that he will move to ban all faith-based arbitrations.

Seeking to end months of debate, McGuinty said he would not let his province become the first Western government to allow the use of Islamic law to settle family disputes and that the boundaries between church and state would become clearer by banning religious arbitration completely.

"There will be no Shariah law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians," McGuinty told The Canadian Press. …

McGuinty said such courts "threaten our common ground," and promised his Liberal government would introduce legislation as soon as possible to outlaw them in Ontario.

"Ontarians will always have the right to seek advice from anyone in matters of family law, including religious advice," he said. "But no longer will religious arbitration be deciding matters of family law."
Muslims and Jews respond

Some Muslim women lobbied against sharia. However, there are other Muslims, women included, who believe that Ontario has made the wrong decision. The Globe and Mail quotes Katherine Bullock, with the Islamic Society of North America:
Ms. Bullock said the aim of sharia is justice and that its values are compatible with Canadian values of justice, respect and dignity.

"The main understanding of women's equality in the West is the liberal feminist version, which is that if men and women are not treated equally and in an identical manner then women are being oppressed," she said.

"There are other understandings of what women's equality means, and one that is best expressed from the Koranic point of view is that women are different but equal."

For example, she said that although sons inherit more than daughters under sharia, men are also supposed to "maintain" women, so the imbalance is justifiable.
Jewish groups also object to the decision. They contend that a blanket prohibition of all religious tribunals is unjust:  "If there is a problem with sharia, they should settle it on its merits," said Rabbi Mordechai Ochs, chairman of the Rabbinical Courts of Toronto.

In other words, the Government of Ontario should not lump all religious tribunals together, but should evaluate the tribunals individually and allow some to continue to operate. According to Rabbi Ochs, "These rabbinical courts have been operating for decades with no complaints."

Blogcritics.org argues against the Premier’s decision on non-religious grounds:
Ironically the granting of arbitration rights to religious bodies allows the government to exercise control over their decisions, and will offer women more protection from religious law than when these tribunals act in an unofficial capacity. …

As it stands right now there is no regulation of Sharia Law in terms of divorce, yet it is currently in use in many mosques throughout Ontario. This means that there are an unknown number of women being treated in exactly the manner the protesters fear will come about if this new legislation is enacted.
Questions

I don’t think it's possible to resolve this dispute tidily. I pose three questions for your consideration:
  1. If the state gives legal recognition to faith-based tribunals, and enforces the decisions of such tribunals, does that constitute an intolerable violation of the principle of the separation of church and state?

  2. If the state denies legal authority to faith-based tribunals, doesn't that violate the principle of freedom of religion?

  3. If the above two principles are in direct conflict in this situation, which principle should yield and which should prevail?
It is precisely in situations like this, where two core values come into conflict with one another, that cases make their way through the court system to the Supreme Court of Canada.

13 Comments:

At 9:14 AM, September 21, 2005, Blogger Juggling Mother said...

1. Yes
2. No
3. Freedom of religion under the state law. When people decide to live in a country, they are presumably there because they believe in the philosophy of that state. Therefore in a country where the church & state are seperated by constitution, with the state having the final say in anything, that is how it should be for all religions.

If people wish to live under religious law, they should move to a country run in that way: Israel, Iran etc. (this applies equally to immigrants & natives)

Obviously there are other considerations when deciding where to live, but "laws is laws". choose the best there is & change it legally from within the structure.

Of course, our seperation of church & state is a laugh - Monarch=head of state, Monarch=head of church.

 
At 9:36 AM, September 21, 2005, Blogger Stephen (aka Q) said...

Just to clarify:

There's nothing in Canada's constitution which mandates a separation of church and state. Not in the written constitution, anyway; but "constitution" can also be understood in a wider sense, to include unwritten principles and customary practices.

In fact, the Constitution Act, 1982 opens with the statement, Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Such "whereas" clauses have no direct legal significance; they merely set the context for the interpretation of what follows. To date, this specific whereas clause hasn't influenced the courts' interpretation of the constitution in any way that is apparent to me.

As for the substance of your comment: I think you speak for a lot of Canadians, even though you aren't one!
Q

 
At 10:04 AM, September 21, 2005, Blogger aaron said...

Q, you have a knack for finding thought-provoking subjects in the news, and just as importantly, recognizing them as such. Again, well done! As to the subject at hand...

Basic question -- how does the arbitration work? Are both parties notified of their legal rights in advance, and do both have to agree to pursue religious arbitration instead of going through the court system? If so, then I have trouble seeing how this is a problem.

I also think of the parallel contained in religious weddings -- they are performed by clergy, and are enforced/recognized by the government. If these ceremonies are ok, I'm not sure why religious divorces should be any less enforceable/recognizable.

 
At 2:45 PM, September 21, 2005, Blogger Juggling Mother said...

I don't know about Canada, but in UK only a couple of religions can perform marriges, and then they have to do so in a way that conforms with English (or Scottish/Irish/ whatever) Law. Obviously loads of religions do perform marriages, but they are only maried in the eyes of the state if they also attend a civil ceremony.

The UK has no written constitution, we're theoretically allowed to do anything that the law hasn't forbidden yet! Still, we all burble on about constitutional rights all the time, including judges, as they say there is an unwritten constitution, understood by society. If it ever gets ratified, we'll get the EU constitution one day, but no-body knows what that says:-)

Still, we also say that arbitration in massively preferable to court proceedings, & if the whole thing can be sorted without any tax-payers money being spent I'm sure the government would approve

 
At 3:01 PM, September 21, 2005, Blogger Stephen (aka Q) said...

Aaron:
Thanks for the kind words.

I think marriage is easier because it doesn't require any enforcement mechanism. Yes, the state registers marriages. After that, marriages just tick along on their own, whether the marriage is a good one or a bad one.

But divorce? … the state is up to its elbows in what would otherwise be private matters, supervising and enforcing people's divorce agreements.

Mrs. Aginoth:
In Canada and in the USA, all (most? — there may be a few exceptions, I don't know) religious bodies have the authority to perform state-recognized wedding ceremonies. There's only one ceremony, whether religious or secular, and then the paperwork is filed with the appropriate government office.

On your other point — Like the UK, Canada is encouraging Alternative Dispute Resolution (e.g. alternative to seeking a court judgement). I'm sure the Government was happy to let faith-based tribunals play this role. Until now.
Q

 
At 4:41 PM, September 21, 2005, Blogger Jack's Shack said...

Hi Q,

I thought that you might be interested in a similar discussion at here andhere

I should add that there is quite a bit of discussion about agunot, or the Orthodox women whose husbands refuse to grant them a 'get' or divorce.

In terms of my own response I have not yet formulated one that I am real comfortable with, but I think that in principle I have to agree with the problems encountered by blanket bans.

 
At 6:03 PM, September 21, 2005, Blogger 49erDweet said...

You sure like to stir the pot!

1. Yes.
2. This one can be tricky. Forget “faith-based” for a moment. If the state denies the legal authority of a decision reached as the result of a session of secular arbitration, then by the same principle it should do the same for a “faith-based” arbitration process decision. What’s good for the goose, etc. But if one is enforceable, then so should be the other. That pre-supposes that each party enters into the process willingly. FURTHER: The only role of the federal/state in this area should be to permit a faith’s adherents to “opt out” of a faith-based arbitration process if they so choose, and select the use of a public judicial system to right a supposed wrong.

In my view the only purpose for an ecclesiastical court is to enforce church discipline. A church should be free to practice its faith and enforce necessary church discipline on those infrequent occasions it might be needed. That’s freedom of religion. Having a federal/state enforce a church tribunal’s edict is exactly why some of us tossed that tea in the harbor not too many years ago.
3. By my reckoning this question should not even arise. The state went too far in question 1, already. Throw them out!

 
At 8:41 PM, September 21, 2005, Blogger Stephen (aka Q) said...

Jack:
Thanks for the links. I found the second one particularly interesting.

I'm still not quite sure what to think about this issue, and I've been following this story for at least a month.

In the first draft, I took a strong line that the Government of Ontario was actively infringing on religious freedom. But by the time I was ready to publish, I had changed my mind. (Part of the beauty of writing — your thoughts evolve as you articulate them.)

Faith-based tribunals can go on functioning; they just won't have the coercive powers of the state to back up their rulings. If two disputants decide to seek a faith-based arbitration of their dispute, they can do that … as long as they both abide by the outcome. A problem only arises if one of the disputants doesn't like the ruling and refuses to abide by it.

But in this case the issue is complicated by the fact that the Jewish tribunals have been functioning, presumably since 1991. It's always tough to take away recognition from someone — much easier never to grant recognition in the first place. So I fully understand why the Jewish community is taking this decision so hard.

Where's the justice in taking recognition from them just because you're suspicious about where another group is headed? It's that injustice that rankles. The link you provided has a point when they interpret it as political correctness run amok.

49er:
You sure like to stir the pot!

I understand why you say that, and I suppose there's an element of truth to it. I like to be provocative. But I try not to use inflammatory language, and mostly we succeed in having a respectful discussion of the issues. That's really what I'm after: respectful, thought-provoking dialogue. That's what keeps me blogging, as I mentioned to Jack earlier today.

You make a very good point that I haven't encountered elsewhere, 49er: that if it's wrong for the state to support Jewish tribunals but not Muslim tribunals, why is it OK for the state to support secular tribunals but not faith-based ones? Discrimination is discrimination, unless there's a rational basis for it. And the rationale is doubtful here.

Maybe the state should outlaw all arbitration that isn't within the state court system. But no one wants to go that far.

An aside: I'm surprised no one has spoken out strongly in support of the separation of church and state.
Q

 
At 2:51 AM, September 22, 2005, Blogger 49erDweet said...

I commented about your 'stirring' in admiration, not consternation.

Church/State Separation is truly a warn-out chestnut. Only the smallest percentage of idealogues still continue to interpret it strictly as freedom FROM religion, rather than OF. That doesn't stop the press in both our countries, however, who pretend they've never even considered it any other way than from.

Funny, the man and woman on both our streets "get it", but the press doesn't. What's wrong with this picture? And truth be told, I believe most people of faith don't want the government involved in their churches, in spite of the example set by the CofE in merry old. The old saw about the government 'being here to help' really scares people probably more than we bureaucrats would like to admit.

Cheers

 
At 2:54 AM, September 22, 2005, Blogger 49erDweet said...

In my trip to England last year I came to the conclusion the Baptist churches we saw seemed much more relevent and funtional than the CofE's. At least in the greater London area.

 
At 7:29 AM, September 22, 2005, Blogger Juggling Mother said...

Charles has said that when (if?) he becomes king, he will swear to uphold the faiths of the people, rather than the faith.

I'm not sure if he's allowed to do this, but if he does, it will be the first official seperation of church & state in England, and a recognition of the multi-cultural backgrounds in the UK.

All this comes at the same time as Trevor Phillips, head of the Commission for Racial Equality in UK states we are "sleeping our way towards aparthide" through segregation, tacit approval of non-integration and allowing illegal acts in the name of religion.

Multi-culturalism should mean integrating individual cultural heritages into the society. Therefore, all religious & secular arbitration is good, but is not state sanctioned.

Of course, a contract is a contract. If both parties sign it, they would have to prove coercion to cancel it.

 
At 10:37 AM, September 22, 2005, Blogger Stephen (aka Q) said...

Mrs. Aginoth:
I said no one had spoken out strongly in support of the separation of church and state, but of course you did in the very first comment. I was thinking that someone in the USA might have strong feelings about it, since it is a real battleground there.

On your other point, a contract is a contract

It isn't necessarily so in family law, at least not in Canada. Children's interests are independent of the parental interests, so a contract between the parents can be overturned by the courts. For example, if a woman agreed to accept only a third of the child support that was rightly owed; her decision could have an adverse impact on the children, and the state might see fit to intervene despite the contract.

49er:
I often speak out in defence of the mainstream media, because I think they get a bum rap. No one thanks me for this; people on the left and people on the right universally think the MSM is biased in the other direction.

In this case, it seems to me that the battle over the separation of church and state is still very much alive in the USA. It isn't a phony war kept alive by the media.

For example, these two US Supreme Court decisions on displaying the Ten Commandments in government buildings. Both decisions were 5-4, permitting the display in one case and forbidding it in the other. "The two cases produced a total of 10 opinions, totaling 136 pages" — which indicates the confusion and lack of consensus on the issue among the Justices on the court.

And this is just one battle among many others. Clearly we haven't seen a final resolution of the issue yet.
Q

 
At 2:34 PM, September 22, 2005, Blogger Juggling Mother said...

I stand corrected Q, you are of course right. Here also, the Childrens act states that "the childs welfare is apramount" and some really strange decisions have been made based on that principle. Equally, we all know that Pre-nups are not worth the paper they are written on here, and courts regularly take expectations into account as well as actualities.

 

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