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May/June 2009

Discover more articles from this issue.

How to Get a Get

Canadian courts deliberate on law and religion.

Reformation and Counter Reformation

The English Reformation and Religious Freedom: PART III

A Clash of Rights

Same-Sex Marriage and Religious Liberty

Coexistent Rights

Same-sex marriage and religious liberty

Faith As Politics

A United Nations Faith Forum

Change You Can Believe In

A few weeks ago a fellow religious liberty activist and I exchanged words on the topic of California

Magazine Archive »

Published in the May/June 2009 Magazine
by Kevin L. Boonstra

Canada prides itself on being a tolerant, multicultural society. Or, as stated in the opening paragraphs of the Supreme Court of Canada’s decision in Bruker v. Marcovit:

“Canada rightly prides itself on its evolutionary tolerance for diversity and pluralism. This journey has included a growing appreciation for multiculturalism, including the recognition that ethnic, religious or cultural differences will be acknowledged and respected. . . . The right to have differences protected, however, does not mean that those differences are always hegemonic. Not all differences are compatible with Canada’s fundamental values.” 1

What does a proudly multicultural state do when confronted with an agreement to enforce a private religious practice that is out of step with modern egalitarian thinking? This is a very relevant question in postmodern Western society, confronted as it now is with a variety of peculiar religious practices and the desire of religious groups to legally impose them on their adherents. One thinks immediately about the place of sharia in the West.

Bruker v. Marcovitz involved a religious divorce between two Jews and an old practice that arguably subjugates women to their husbands. This is clearly in conflict with modern views on equality rights and values enforced by the Canadian courts under the Charter of Rights and Freedoms.

Stephanie Bruker and Jason Marcovitz, both religious Jews, married in 1969. Ms. Bruker commenced divorce proceedings in 1980, when she was 31 and Mr. Marcovitz was 48. They made an agreement on matters corollary to the divorce, both with the assistance of legal counsel. This “consent to corollary relief” included terms regarding custody of their two children, child support, and spousal support. They agreed to appear before the rabbinical authorities to obtain a get immediately upon the granting of a decree nisi of divorce.

A get is a Jewish divorce that is within the husband’s power. The process takes place under Jewish law before three rabbis in a beth din , or rabbinical court. A wife cannot obtain one without her husband’s agreement. With a get , the husband releases his wife from the marriage and authorizes her to remarry.

The vast majority of Jewish husbands in such a situation freely give their wives a get . Those who do not have created a long-standing source of concern and frustration in Jewish communities. There is no mechanism in Jewish law by which a wife can compel her husband to grant a get .

According to Jewish law, when a husband refuses to agree to give a get , the wife is without legal recourse. She remains his wife according to religious laws and unable to remarry, despite the granting of a civil divorce. Any children she has on civil remarriage would be considered “illegitimate” under Jewish law.

Despite agreeing to grant a get , Mr. Marcovitz refused to do so for 15 years, despite her repeated requests, both personally and through various rabbis, that he honor their agreement. In the interim, Ms. Bruker did not remarry or have any other children.

When he finally granted a get in December of 1995, he was 63 and she was almost 47. Ms. Bruker sued for breach of their agreement, seeking damages. Mr. Marcovitz defended by arguing that the agreement, being religious in nature, was unenforceable by the civil courts. He said he was shielded from the legal claim by the constitutional guarantee of freedom of religion.

When the matter went to trial in the Quebec Superior Court,2 Mass J. enforced the agreement, holding that the object of their agreement was not primarily religious and that Mr. Marcovitz had undertaken an obligation, enforceable at civil law obligation, to appear before the rabbinical authorities.

Mr. Marcovitz appealed.3 The Quebec Court of Appeal reversed the trial decision, holding that because the substance of Mr. Marcovitz’s obligation was religious in nature, it was a moral obligation and unenforceable by the courts. The court relied on statements by the Supreme Court of Canada that the courts are not, nor should they become, the arbiters of religious dogma.4

It was Ms. Bruker’s turn to appeal, which she did to the Supreme Court of Canada. The majority of the Supreme Court of Canada allowed the appeal and restored the damage award granted by Mass J.5 Two justices, Deschamps and Charron JJ., writing in dissent, would have denied the appeal.

The court did not so much enforce a religious obligation as visit Mr. Marcovitz with the consequences of failing to abide by the bargain he made.

The majority relied on the principle that the courts will not consider matters that are strictly spiritual or narrowly doctrinal, but may inter¬vene when civil or property rights are in issue. They determined that Mr. Marcovitz’s agreement to give a get was therefore a valid and binding contractual obligation under Quebec law. The religious aspect of the agreement did not make it nonjusticiable.

The sympathetic position of Ms. Bruker undoubtedly influenced the court. The majority justices emphasized that Mr. Marcovitz’s promise was the result of negotiation between two consenting adults, each represented by legal counsel. They also stressed that Mr. Marcovitz’s refusal to give a get was “based less on religious conviction than on the fact that he was angry at Ms. Bruker.”6

The civil law of Quebec recognizes three kinds of obligations: moral, civil (or legal), and natural.7 The majority’s determination did not undermine the principle of Quebec law that moral obligations cannot be enforced at law. This is because Mr. Marcovitz’s obligation to provide a get arose under divorce agreement recognized by the law. The majority categorized the agreement as a civil one and therefore prima facie enforceable under Quebec law.

They then considered whether the agreement was contrary to public policy, in which case the courts would still not enforce it. This is an artful way of enforcing a religious obligation but without establishing a legal precedent that could also enforce religious obligations that are out of step with modern equality thinking.

There could be contracts with religious aspects that could be against “public order”—for example, a religiously motivated agreement to resolve a custody dispute that offends a child’s best interests. The court avoided this difficulty by concluding that Mr. Marcovitz’s obligation to provide a get “harmonizes with Canada’s approach to religious freedom, to equality rights, to divorce and remarriage generally.”8

Importantly, the majority also focused on the fact that Mr. Marcovitz’s refusal to grant a get was not based on his personal religious conviction. Even if this were not the case, the majority concluded that granting the get was consistent with public policy in Canada to reduce barriers for women in divorce and remarriage: “The public interest in protecting equality rights, the dignity of Jewish women . . . , as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests and values that outweigh Mr. Marcovitz’s claim that enforcing [the agreement] would interfere with his religious freedom.”9

Implicit in this reasoning is that a court would not enforce a religiously motivated provision in an otherwise legally enforceable contract if the court found that the provision was contrary to the court’s perception of “public policy.” Given how increasingly out of step religious people (particularly those who are seen as fundamentalists within their religions) seem to be with society as a whole, there are many ways in which this reasoning could undercut agreements focused on religious practices in the future.

The dissenting justices focused instead on the principle that the courts will remain neutral where religious precepts are in issue. Given that there are no civil law rules with respect to the absence of a get, all consequences flow from religious rules. Deschamps J. wrote that only religious rights were in issue, and the court’s nonintervention in such rights makes it possible to avoid situations in which the court is asked to “decide between various religious rules or between rules of secular law and religious rules.”10

Deschamps J. analogized the contractual promise to attend before the rabbinical authorities to give the get to a promise to go to church. This, she held, is a moral obligation that cannot be enforced by the courts.

The majority did not decide to enforce a religious obligation. The reasons for judgment are clear that, under Jewish law, Mr. Marcovitz had no religious obligation to give a get. Clearly, it would be inappropriate for the courts to interfere in a strictly doctrinal dispute within a religious community. Equally, it would be inappropriate for the courts to order compliance with a religious practice for religious reasons. To do so would involve an unwarranted intrusion by the civil authorities into the affairs of a private religious community. It would also undermine the freedom of religion guaranteed by the Charter.

The agreement entered into between Ms. Bruker and Mr. Marcovitz dealt with a variety of issues, including their respective civil rights under divorce law to child and spousal support. In this context they agreed to deal with all matters of their marital relationship, including those touched by their religious beliefs and practices. For the courts to enforce a portion of the contract while ignoring the benefits provided by another would create a new and different bargain between the parties. In other words, the courts enforced the get obligation because the parties chose to convert it from simply a moral or religious obligation to a civil one.

The court may well have been motivated by the fact that Mr. Marcovitz would otherwise be able to retain the benefits he acquired in the contract, while avoiding one of his freely undertaken obligations. There is nothing in the majority’s reasons to suggest that, had Mr. Marcovitz made the promise to give a get outside of a legally enforceable contract, the court would or could have intervened to assist Ms. Bruker.

This is an appropriate balance. The courts should remain neutral in religious matters and should avoid interference in religious disputes. However, when parties voluntarily mix the civil and the sacred, they should not be able to retain the civil advantages while avoiding their reciprocal religious obligations.

That having been said, the analysis undertaken by the majority of the Supreme Court of Canada with respect to considering whether contractually undertaken religious obligations meet with public policy objectives still leaves the door open for the courts to express their opprobrium for religious beliefs and practices in future cases. This may create troubling consequences in future cases, as it may allow courts to refuse to enforce a voluntary civil contract where it disagrees with the religious belief or practice on which the contractual obligation is based.

The majority indicates their intention to avoid “judicial sanction of the vagaries of an individual’s religion.”11 This approach is somewhat undermined by later analyzing whether the religious obligation to be enforced is “prohibited by law or . . . contrary to public order.”12 Using the courts to enforce a bargain involving a religious practice will continue to create judicial discomfort in the future, thereby necessitating a basis upon which a valid contractual bargain with a religious component would not be enforced.

Courts should not make a decision where a contractual promise with religious significance has no substantive impact on other persons or their rights. Such a claim would have no damage to the person making the religious claim. For example, a failure to abide by a promise to attend temple or church regularly likely creates no harm to the person to whom the promise was made. It should therefore be unenforceable in secular courts. Otherwise, the courts are too close to interfering in religious practices and social obligations between citizens.

It is interesting that Ms. Bruker did not seek an injunctive relief, compelling Mr. Marcovitz to give a get. The court stayed clear of opining on what the result of such an application would be. In other words, the court did not so much enforce a religious obligation as visit Mr. Marcovitz with the consequences of failing to abide by the bargain he made. Significantly, the damage award was not made simply because of Mr. Marcovitz’s failure to perform a religious act, but because of the impact that his breach of contract had on Ms. Bruker.

It remains to be seen whether the courts will issue orders to compel religious acts promised under contract. This will be particularly interesting where the failure to perform such religious acts does not create a significant and civilly recognizable detriment to the other contracting party. The Bruker v. Marcovitz decision does not dictate that such an order would be necessarily forthcoming, or that any award would be made in the absence of a real detriment to the other party. In the absence of such a detriment, the argument that a court is interfering in a strictly religious matter would have much more force, as would the objection to the court’s involvement.13

The court’s decision also challenges the idea that a “secular” state must not permit any meaningful interaction between the affairs of the state and the sacred. Many people misunderstand the meaning of “secular” and believe that postmodern secularism requires no interaction between the state and religion.

In this case, the court, which is an arm of the state, involved itself appropriately in a religiously motivated matter because of the impact it had on the lives of citizens. It did so only through a proper application of contract law. Philosophically, the misguided approach to secularism must give way in these circumstances.

Religion and the state coexist and will always interact. The influence that the religion has on the state and government is assiduously limited in Canada and the United States. The reverse must be true as well in terms of preventing the state from direct involvement and interference with the affairs of religious communities. These two spheres of human activity intersect in how religious people organize their lives within the law. The issue is not control by one over the other, but recognition of the reality that the religious and the secular intersect and influence one another within their properly defined jurisdictions.

Religious belief and practice must be treated with respect in Canada in order for religious freedom to have meaning. Courts must eschew assessing the appropriateness of religious doctrine. This does not prevent the enforcement of religiously motivated contractual provisions in which there is an intersection with legal rights. Doing so honors the religious and civil commitments of Canadians. Failing to enforce such commitments can undermine a person’s ability to live a full life in accordance with his or her religious beliefs. That was the cost imposed on Ms. Bruker, and the court was right to recognize the religious harm caused by Mr. Marcovitz.

Kevin L. Boonstra is a partner in the law firm Kuhn & Company, practicing in Vancouver and Abbotsford, British Columbia, Canada.

  1. 2007 SCC 54.
  2. [2003] R.J.Q. 1189.
  3. [2005] R.J.Q. 2482.
  4. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47.
  5. Subsequent to the Supreme Court of Canada’s decision, Mr. Marcovitz brought an application for the court to reconsider the result by constitutionally challenging a provision of the federal Divorce Act that provides a court with discretionary powers to preclude a spouse from obtaining relief or proceeding under the Divorce Act where that spouse refuses to remove a barrier to religious remarriage. The Vancouver Sun, February 2, 2008—“Man Challenges Divorce Act in Supreme Court.” On March 10, 2008, the application was dismissed by the Supreme Court (Supreme Court of Canada bulletin of March 20, 2008).
  6. 2007 SCC 54, par. 69.
  7. Unlike almost all of the rest of North America, which has common law, Quebec (like Louisiana) still has civil law, governed by a civil code.
  8. 2007 SCC 54, par. 63.
  9. Ibid., par. 92.
  10. Ibid., par. 131.
  11. Ibid., par. 18.
  12. Ibid., par. 59.
  13. See par.18 of the majority’s reasons, in which they mention the importance of taking into account the “particular personal . . . consequences” of enforcing a right with religious connections.

Author: Kevin L. Boonstra

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