Rabbis said to use torture to secure divorces for women

[merithyn]

I never realized just how American I was until I read through this thread.

[Malthus]

The nub of the matter is that the lawmakers evidently saw that being prevented from remarrying in one's faith by a religious barrier imposed by someone else at their sole discretion was a "harm" that ought to be discouraged . . . Discouraging those who would impose a religious barrier to remarriage seems to me to serve legitimate social purposes

Agreed.
But the question in the US context is whether the First Amendment permits the government to use its power to remedy that harm and serve that social purpose.
It's not enough to say that the impairment of religious freedom is not that weighty compared to the harm being remedied.  The harm in question is one that stems entirely from one's membership in a particular religious community and from the relgious beliefs and commitments in the heads of the persons affected. The question is whether in that context the government can use its coercive powers to try to cause a particular religious ritual to be performed.

The Canadian constitution handles these issues differently.

The issue here would be whether the law in question impairs religious freedom, and if it did, whether it passed the proportionality test (the "Oakes Test").

Section 1 of our Charter states as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In short, the Canadian approach is not one of absolute rights, but of rights bounded by 'reasonable limits'.

[crazy canuck]

The nub of the matter is that the lawmakers evidently saw that being prevented from remarrying in one's faith by a religious barrier imposed by someone else at their sole discretion was a "harm" that ought to be discouraged . . . Discouraging those who would impose a religious barrier to remarriage seems to me to serve legitimate social purposes

Agreed.
But the question in the US context is whether the First Amendment permits the government to use its power to remedy that harm and serve that social purpose.
It's not enough to say that the impairment of religious freedom is not that weighty compared to the harm being remedied.  The harm in question is one that stems entirely from one's membership in a particular religious community and from the relgious beliefs and commitments in the heads of the persons affected. The question is whether in that context the government can use its coercive powers to try to cause a particular religious ritual to be performed.

I think I understand better what Grumbler is saying.

In Canada the constitutional question is somewhat different.

First we consider whether there is a breach of a constitutional right.  Lets assume there is in this case on the basis of what Grumbler has been arguing.  We then turn to the question of whether the breach is justified.  If the legislation's main purpose is to deal with a harm identified by the legislators; there is evidence to support the contention that the harm exists; and if the steps taken to address the harm create a minimal impairment of the right then chances are the court will find the breach is justified.

[The Minsky Moment]

You are missing the point I am trying to make.  The court will need to consider the man's evidence that he cannot grant the Get for religious reasons and weigh that against any evidence presented to the court that his position ought not be accepted.  This is the sort of weighing of evidence courts routinely do. 

These issues come up in Title VII accomodation cases.  The question in those cases is whether an employer must make some sort of accomodation to the religious beliefs of employees (eg dress codes or alternative days off).  One of the requirements is that the person seeking accomodation must have a "sincerely held" religious belief.  So how do secular courts deal determine whether a belief is a sincerely held religious belief?  Basically, they don't.  If the plaintiff says the belief is a religious one, the courts tend to take that person's word for it unless there is evidence of gross contradiction (e.g. a supposed Sunday sabbath observer who works another job on Sunday). 

As an example in a case decided this year, the court made the following observations:

It is not within our province to evaluate whether particular religious practices or observances are necessarily orthodox or even mandated by an organized religious hierarchy. "Courts should not undertake to dissect religious beliefs because the believer admits that he is 'struggling' with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ."  . . . courts also do not require perfect consistency in observance, practice, and interpretation when determining if a belief system qualifies as a religion or whether a person's belief is sincere. These are matters of interpretation where the law must tread lightly.

[Berkut]

I'm still unclear as to why a court would want to weight in on a religious matter like this.

The nub of the matter is that the lawmakers evidently saw that being prevented from remarrying in one's faith by a religious barrier imposed by someone else at their sole discretion was a "harm" that ought to be discouraged.

But it is a strictly religious matter. The "harm" being done is based completely on ones belief in a religion. Absent that belief, there is not harm at all.

What if I invent a religion that says that all women are only allowed to have sex with me, unless I give them permission otherwise? If I get enough people to buy into such a stupid proposition, can the Canadian courts then step in and force me to give said permission even if I don't want to, because otherwise I am harming others...who are only harmed because they believe in my religion to begin with?

The basic problem here is that some person A believes that some other person B has the ability to force them to act in some particular manner based on some religious tenet C. Absent person A's belief that C has any relevance, the point is moot, right?

So where does this stop? Why is it only in the issue of divorce and marriage that the state should take an interest in making sure people do not use shared religious beliefs to limit the activities of others?

[The Minsky Moment]

The Canadian constitution handles these issues differently.

Understood.
The US is probably outside the international norm on these issues due to its unusual history and constitutional development.
That can lead to results that can seem odd or anomolous, even to Americans.

[derspiess]

I never realized just how American I was until I read through this thread.

No shit.  I'm not even that strict about the separation thing, but something like this would be over the line for me.

[crazy canuck]

These issues come up in Title VII accomodation cases.  The question in those cases is whether an employer must make some sort of accomodation to the religious beliefs of employees (eg dress codes or alternative days off).  One of the requirements is that the person seeking accomodation must have a "sincerely held" religious belief.  So how do secular courts deal determine whether a belief is a sincerely held religious belief?  Basically, they don't.  If the plaintiff says the belief is a religious one, the courts tend to take that person's word for it unless there is evidence of gross contradiction (e.g. a supposed Sunday sabbath observer who works another job on Sunday). 

That is another significant difference between our systems of justice and helps me understand Grumblers point even more.  The equivalent issue is considered in hearings before our Human Rights Tribunals.  In cases of accomodation based on religious belief the sincerity of the belief is a matter which the complianant must establish.  It is a low bar but it is fact which must be established on the evidence.

[crazy canuck]

So where does this stop? Why is it only in the issue of divorce and marriage that the state should take an interest in making sure people do not use shared religious beliefs to limit the activities of others?

Where it stops is the question our courts deal with on a daily basis when they consider whether constitutional breaches are demonstrably justified in a free and democratic society.

Meri's comment is apt.  This is perhaps the most significant area where our two countries differ.    You have absolute rights enshrined in your constitution.  We have a balancing approach.

[crazy canuck]

The basic problem here is that some person A believes that some other person B has the ability to force them to act in some particular manner based on some religious tenet C. Absent person A's belief that C has any relevance, the point is moot, right?

Also something that helps explain the difference of approach.  Here A cannot simply assert such a belief and be successful.  Here is how the court would address it:

First, it must be determined on what religious
precept the belief or conviction is based. The majority decision specifies
that the employee has the onus of establishing that a belief is genuinely
religious, not secular. Second, an assessment must be made of the sincerity
of the claimant's religious beliefs. The individual must objectively believe
that he or she is under a religious obligation. The extent of sincerity is to be
judged on a case-by-case basis, and must be supported by sufficient evidence.
The majority cautioned that it is not necessary for an individual to
demonstrate that a belief is held by leaders, or even a majority, of a religious
group

[merithyn]

The interesting thing is that I understood the Canadian reasoning a while ago. I just can't wrap my head around it being an acceptable alternative to keeping it out of the courts entirely. That's when I realized that I'm through-and-through American.

To us, "beliefs" have no business being decided in the courtroom. Some courts may have done so for various reasons, but in general, it just doesn't belong there. It opens a door that should remain closed.

[crazy canuck]

To us, "beliefs" have no business being decided in the courtroom. Some courts may have done so for various reasons, but in general, it just doesn't belong there. It opens a door that should remain closed.

That is a good way of of explaining the difference of approach.  Under the Canadian system simply declaring that one has a religious belief of x doesnt imbue the declarant with special protection.  We have  a low bar to determine the sincerity of the belief but it does weed out Berkut's person A.

[The Brain]

If only the Canadian lawyers explain the Canadian way a bit more all will be well. The basic problem isn't that the Canadian way is retarded. No Sir.

[Malthus]

I'm still unclear as to why a court would want to weight in on a religious matter like this.

The nub of the matter is that the lawmakers evidently saw that being prevented from remarrying in one's faith by a religious barrier imposed by someone else at their sole discretion was a "harm" that ought to be discouraged.

But it is a strictly religious matter. The "harm" being done is based completely on ones belief in a religion. Absent that belief, there is not harm at all.

What if I invent a religion that says that all women are only allowed to have sex with me, unless I give them permission otherwise? If I get enough people to buy into such a stupid proposition, can the Canadian courts then step in and force me to give said permission even if I don't want to, because otherwise I am harming others...who are only harmed because they believe in my religion to begin with?

The basic problem here is that some person A believes that some other person B has the ability to force them to act in some particular manner based on some religious tenet C. Absent person A's belief that C has any relevance, the point is moot, right?

So where does this stop? Why is it only in the issue of divorce and marriage that the state should take an interest in making sure people do not use shared religious beliefs to limit the activities of others?

I'm not sure I see a real slippery slope problem here.

[Malthus]

If only the Canadian lawyers explain the Canadian way a bit more all will be well. The basic problem isn't that the Canadian way is retarded. No Sir.

Nothing hurts quite like being judged retarded by a Swede.