Court upholds civil rights against religious doctrine

by Zvi Halpern and Michelle Landy

This commentary was first published in the Toronto Star on December 21, 2007.

Legal disputes involving religious doctrines should not be beyond the reach of the courts. Otherwise, claims of religious freedom would immunize wrongful behaviour from legal consequences.

In its decision published Dec. 14, Bruker v. Marcovitz, the Supreme Court has shown itself willing to scrutinize claims of religious freedom on their own terms, and balance them against questions of public order and democratic values.

This remarkable decision has brought Canadian jurisprudence to an entirely new level of multiculturalism, recognizing that religion plays a crucial role in many Canadians' lives, and that the law cannot be blind to injuries caused within that sphere.

The basic facts of the case are a familiar story to many Jews. Jewish divorce laws require that the man divorce his wife, not the other way around. If a man refuses to write a divorce document, a get, his wife is unable to remarry.

Most Jewish men divorcing their wives give this get freely, but a small minority do not, and their wives are known as agunot – abandoned, chained women. Any children resulting from a union of the aguna are considered mamzerim – individuals barred from marrying within the Jewish community.

Jessel Marcovitz and his wife Stephanie Bruker tried to avoid this situation. They contracted at the beginning of their divorce settlement that the husband, Marcovitz, would give his wife a get according to a ruling by a Jewish court, a Beth Din. But upon divorce, Marcovitz refused to give the get.

For 15 years, Bruker was unable to remarry according to her faith, until she was past child-bearing age. She sued Marcovitz for the damages he caused her – her inability to remarry or have children. In a stunning ruling, the Quebec Court of Appeal decided that it had no jurisdiction in religious matters. The contract between Bruker and Marcovitz was not worth the paper it was written on.

The Supreme Court of Canada reversed this decision. All nine judges disagreed with the Quebec Court of Appeal that contracts relating to religious obligations are unenforceable.

Justice Rosalie Abella, writing for the seven-member majority, concluded that although a moral obligation is unenforceable under the Quebec Civil Code, there is nothing to stop individuals from turning such an obligation into a legally binding one through a contract.

For example, giving charity is merely a moral obligation, but once a person contracts with a charitable organization to give a particular donation, there is no reason to think such a contract would not be valid.

The dissenting judges agreed that such a contract could be enforceable, but argued that under Canadian law, and in terms of Canadian values, nothing was stopping Bruker from remarrying. Her children resulting from such a marriage would have the same secular rights as any other Canadian citizens. Only her personal religious convictions stood in her way; her damages were self-caused.

Justice Abella, and the majority of the court, however, looked beyond such an individualistic view of religion. Jewish Canadian women are presented with a "dichotomous scenario," a split between their religious and civil legal situations; religion exists within a community and a shared set of cultural norms.

In other words, injuries caused by cultural norms are not figments of the imagination.

Religious and cultural obligations form the life experiences of Canadians who live by them, and they cannot be brushed off as "cultural" values instead of "Canadian" values. It is traditionally within the court's jurisdiction to "ensure that members of the Canadian public are not arbitrarily disadvantaged by their religion," Abella concludes, and this case fits comfortably within that tradition.

This decision will have significant impact on religious communities in Canada.

One example of this is the get pre-nuptial agreement. In the United States, Orthodox Jewish couples are required to sign an agreement obliging the husband to give a get upon marriage breakdown, or submit to a hefty, ever-increasing fine. Such agreements could now be enforceable in Canada.

Looking broadly, the Supreme Court has shown a willingness to scrutinize religious disputes against legal obligations and Charter values. Here, Marcovitz's freedom of religion, his alleged freedom to withhold a get, was displaced in favour of "democratic values" and "general well-being of citizens."

Multiculturalism, and especially religious freedom, must be weighed against other rights and freedoms; the Charter's guarantee of religious freedom does not immunize questionable practices against judicial scrutiny.

Our Supreme Court made the right decision. A judiciary that ignores religion in the name of state neutrality, as the dissenting judges and Quebec Court of Appeal wished to do, is discounting the tangible impact that religion has on the lives of many Canadians.

A truly multicultural Canada must be able to view the lives of its citizens from within their individual cultures.

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Zvi Halpern is a Ph.D. and JD candidate at University of Toronto and Michelle Landy is an LLB candidate at Osgoode Hall Law School.