Rabbis said to use torture to secure divorces for women

[Malthus]

Of course there is a difference. The point is that making a Rabbi a presumptive "agent of the state" is making a religious figure, and a religious ceremony (since that Rabbi will only perform a marriage as part of an express religious ceremony), part of the secular legal system. His ceremony matters legally, since it has the power to confer the state of marriage - because the state has delegated him that power.

Child visitation isn't a part of the Ontario statute. Nor is it a correct summary of the situation to say that the Court there is  "... making a decision about marital assets ... based on a religious edict.". They aren't. The decision remains that of the judge and it is not based on the "edict" but on the fact that the guy is demonstrating through his actions that he's an asshole - refusing her remarriage for no reason other than spite (there is no "religious" basis to a refusal to give a get - that is, it is not a matter of "concience").

What they are doing, is obtaining explicit discretion from the statute to strike claims or defences based on an action by the person seeking access to the court - namely, a refusal to grant relief from religious barriers to remarriage. 

*shrugs*

And I don't think it should factor into it at all. Not legally, anyway.

It's really no more that a specific application of the "clean hands" doctrine.

Put at its most basic:

clean hands doctrine n. a rule of law that a person coming to court with a lawsuit or petition for a court order must be free from unfair conduct (have "clean hands" or not have done anything wrong) in regard to the subject matter of his/her claim. His/her activities not involved in the legal action can be abominable since it is considered irrelevant. As an affirmative defense (positive response) a defendant might claim the plaintiff (party suing him/her) has a "lack of clean hands" or "violates the clean hands doctrine" because the plaintiff has misled the defendant or has done something wrong regarding the matter under consideration. Example: A former partner sues on a claim that he was owed money on a consulting contract with the partnershiip when he left, but the defense states that the plaintiff (party suing) has tried to get customers from the partnership by spreading untrue stories about the remaining partner's business practices.

You want the court to hear your arguments about this divorce? Then you must not come to the court having done something fundamentally spiteful in relation to this divorce.

[derspiess]

I don't see how refusing to do something you're not actually obligated to do would indicate a lack of clean hands.

[OttoVonBismarck]

I do think by the way, that treating someone differently in a hearing is worse than civil contempt. I'm fine with this process:

Judge issues a court order --> guy refuses --> guy is held in jail for contempt. In that scenario the man has the "keys to the jail" and can leave at any time by choosing to comply with the court order. I don't agree with these weird religious orders though, so I'd like to see them barred--and I think a vigorous constitutional challenge would result in them being struck down and it is just not ripe for it to happen yet.

To me it's perfectly fine to jail someone for disobeying a lawful court order, it makes less sense, and seems more perverse to instead "treat them unfairly" in a hearing about disposition of assets. Under what standard of law is "he's an asshole" mean he should be entitled to less of the marital assets?

[OttoVonBismarck]

Also, what if the man has left the faith and is now an atheist? Could his Orthodox wife demand he grant her a "get" when he himself is no longer religious?

[Malthus]

I don't see how refusing to do something you're not actually obligated to do would indicate a lack of clean hands.

You are obligated to do it, according to the religion.

Failure to provide a "get" is a failure to carry out an obligation. The only reason (within this particular religious setting) to not give a "get" is spite. This is acknowledged by all parties. It isn't like some Jewish med have legitimate religious reasons of concience not to give them. Rabbincal courts may well order such men to give "gets", but they have no real power other than ostracism.

It is somewhat analogous to the notion of "bad faith" in contracting. "Bad faith" refers to doing something that, while not contrary to the letter of the contract as it is written, is contrary to the obvious intentions of the parties. In many jurisdictions, courts will imply a duty to carry out contractual obligations in "good faith", even if acting in "bad faith" is theoretically allowable within the strict wording of the contract as written. 

Similarly, under Jewish laws, a man theoretically has to consent to give a "get", but this consent, as a matter of honour, is never supposed to be withheld.

[Malthus]

I do think by the way, that treating someone differently in a hearing is worse than civil contempt. I'm fine with this process:

Judge issues a court order --> guy refuses --> guy is held in jail for contempt. In that scenario the man has the "keys to the jail" and can leave at any time by choosing to comply with the court order. I don't agree with these weird religious orders though, so I'd like to see them barred--and I think a vigorous constitutional challenge would result in them being struck down and it is just not ripe for it to happen yet.

To me it's perfectly fine to jail someone for disobeying a lawful court order, it makes less sense, and seems more perverse to instead "treat them unfairly" in a hearing about disposition of assets. Under what standard of law is "he's an asshole" mean he should be entitled to less of the marital assets?

He isn't. The consequences are, as I've said before, that his claims or defences may be struck in the discretion of the court - which may, as a consequence, result in him doing worse than he would otherwise have done.

It is far less serious a result that a contempt case in the US, where there is no "proportionality".

Also, acting like an asshole in a matter realated to a court case often has financial consequences in US civil cases - far more often so than in Canada. See "punitive damages", which are expressly awarded to punish litigants for "high handed, contemptuous" behavior.

[derspiess]

You are obligated to do it, according to the religion.

I'm sure that matters greatly within the religion.  But outside of it, I don't see why it should matter.  I've probably slipped from time to time on some things my religion obligates me to do-- should that matter to any civil authority?

[Malthus]

You are obligated to do it, according to the religion.

I'm sure that matters greatly within the religion.  But outside of it, I don't see why it should matter.  I've probably slipped from time to time on some things my religion obligates me to do-- should that matter to any civil authority?

Because in this case the "slip" has a very harmful effect on someone else - the ex-wife, who is prevented by this "slip" from remarrying within her faith. Otherwise, you are right, no-one would care.

[garbon]

You are obligated to do it, according to the religion.

I'm sure that matters greatly within the religion.  But outside of it, I don't see why it should matter.  I've probably slipped from time to time on some things my religion obligates me to do-- should that matter to any civil authority?

Because in this case the "slip" has a very harmful effect on someone else - the ex-wife, who is prevented by this "slip" from remarrying within her faith. Otherwise, you are right, no-one would care.

Why should it matter to the court whether or not she can remarry in her faith?

[Malthus]

You are obligated to do it, according to the religion.

I'm sure that matters greatly within the religion.  But outside of it, I don't see why it should matter.  I've probably slipped from time to time on some things my religion obligates me to do-- should that matter to any civil authority?

Because in this case the "slip" has a very harmful effect on someone else - the ex-wife, who is prevented by this "slip" from remarrying within her faith. Otherwise, you are right, no-one would care.

Why should it matter to the court whether or not she can remarry in her faith?

Because intentonally causing someone harm for no good reason is bad? 

Courts do (and ought to) put a value on purely intangible harms, even harms to nutty religious people based on their own religious nuttery.

To provide a somewhat analogous example, Courts are likely to treat intentional sacrilage or desecration more harshly than an equivalent action that is not sacrilage - if you smash a grave headstone, you will likely be in more trouble than if you smash a garden gnome of equivalent monetary value. Even if it was a really cute garden gnome.

Now obviously, one should weigh such harms against other legitimate interests - no letting nutty religious people going around claiming crazy things like 'having gays marry harms my notion of marriage so you can't do it!' or somesuch nonsense .. but that's just the point: in this particular case, there are no competing legitimate interets. The guys who refuse "gets" aren't even pretending to have any reasons for doing it other than spite.

[jimmy olsen]

... except that you have failed to articulate any rules or principles being "bent" other than 'I don't like it, no sirree'.

I'm not sure where this hostility is coming from, but I believe that I did articulate such principles repeatedly.  Just because you can cite legal opinions that disagree with my interpretation of such principles does not negate the fact that I did state these principles.

What "hostility"?  Is claiming someone is wrong or hasn't articulated a point a hostile act for you?  This is the second time you have passively-aggressively claimed I'm being mean. What gives with you?

Malthus, take it easy, we're not debating circumcision here.

But fair enough - you haven't articulated any rules or principles other than those demonstrated to be irrelevant.  Better?

Claiming that someone is wrong isn't hostile, but claiming they haven't articulated a point is. You obviously disagree with them, but they have clearly laid out their point.

[Malthus]

Claiming that someone is wrong isn't hostile, but claiming they haven't articulated a point is. You obviously disagree with them, but they have clearly laid out their point.

Claiming someone hasn't articulated a point may well be incorrect, but it isn't by any reasonable definition"hostile". 

"Hostile" implies some sort of anger and aggression, doesn't it?

[Jacob]

Claiming someone hasn't articulated a point may well be incorrect, but it isn't by any reasonable definition"hostile". 

"Hostile" implies some sort of anger and aggression, doesn't it?

I'm a bit puzzled by this as well.

[Malthus]

Claiming someone hasn't articulated a point may well be incorrect, but it isn't by any reasonable definition"hostile". 

"Hostile" implies some sort of anger and aggression, doesn't it?

I'm a bit puzzled by this as well.

I can only conclude that they are using "hostile" with some different meaning that how we understand the word.

[Admiral Yi]

Agree that hostile doesn't really work.  More like patronizing, dismissive, dishonest.