Rabbis said to use torture to secure divorces for women

[Malthus]

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.

So, if I was an Indian, I can "join" the Native American Church and take Peyote legally ... and the US Court won't question it because, no matter what the statute says, the US Court won't evaluate "... whether particular religious practices or observances are necessarily orthodox or even mandated by an organized religious hierarchy"? 

Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.
—42 U.S.C. 1996A(b)(1).

It strikes me as very wierd to have statutes requiring an evaluation of the "bona fides" of a belief, but courts who are unwilling to investigate the issue.

[Malthus]

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.

The US laws apparently require such an evaluation in certain unusual circumstances, just like the Canadian laws do.

Minsky says the courts won't make such an analysis, but the laws, as drafted, clearly require it. See my post above.

[merithyn]

The US laws apparently require such an evaluation in certain unusual circumstances, just like the Canadian laws do.

Minsky says the courts won't make such an analysis, but the laws, as drafted, clearly require it. See my post above.

You misunderstand. I'm not saying that the courts don't get involved - and in fact, I mentioned that they do. I said that 'to us', as in the average American, ' "beliefs" have no business being decided in the courtroom.'

[Malthus]

The US laws apparently require such an evaluation in certain unusual circumstances, just like the Canadian laws do.

Minsky says the courts won't make such an analysis, but the laws, as drafted, clearly require it. See my post above.

You misunderstand. I'm not saying that the courts don't get involved - and in fact, I mentioned that they do. I said that 'to us', as in the average American, ' "beliefs" have no business being decided in the courtroom.'

Then I am unsure as to how one differentiates "Canadian reasoning" from "American reasoning".

I myself have no idea how the average Canadian views this issue.

[viper37]

The US laws apparently require such an evaluation in certain unusual circumstances, just like the Canadian laws do.

Minsky says the courts won't make such an analysis, but the laws, as drafted, clearly require it. See my post above.

You misunderstand. I'm not saying that the courts don't get involved - and in fact, I mentioned that they do. I said that 'to us', as in the average American, ' "beliefs" have no business being decided in the courtroom.'

Let's make a parallel.  Creationism is a religious belief, no?  Some people wanted it to be taught in school, and succeeded for a while.  Then the court ruled it was inapropriate.  How is that not interfering with religious beliefs?  Why is it that some average Americans felt compelled to take matters of religion to court?

Could it be possible that some religious practice lead to excess and these require the intervention of the tribunals?

[The Minsky Moment]

So, if I was an Indian, I can "join" the Native American Church and take Peyote legally ... and the US Court won't question it because, no matter what the statute says, the US Court won't evaluate "... whether particular religious practices or observances are necessarily orthodox or even mandated by an organized religious hierarchy"? 

Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.
—42 U.S.C. 1996A(b)(1).

Yes, if you are a registered member of a federally recognized Indian tribe.
The tricky part with this statue is the overlay with broad Congressional "plenary" power over all Indian affairs.

It strikes me as very wierd to have statutes requiring an evaluation of the "bona fides" of a belief, but courts who are unwilling to investigate the issue.

The courts are willing to investigate, but most likely in the sense of assessing overt indicia of truthfulness.  If a person claims that their religion requires them to wear a vintage Brooklyn Dodgers baseball cap at all time, and if the employer presents evidence of dozens of facebook pictures of that person sans cap, they are going to a tough go showing sincerity of belief.  But the court is unlikely to descend into the philophical morass of making determinations of whether the theological bona fides of the Church of Ebbets are really legit.

[The Minsky Moment]

Let's make a parallel.  Creationism is a religious belief, no?  Some people wanted it to be taught in school, and succeeded for a while.  Then the court ruled it was inapropriate.  How is that not interfering with religious beliefs?  Why is it that some average Americans felt compelled to take matters of religion to court?

you have it backwards.
The right of a religious community to teach creationism cannot be abridged.
But a public, government run school CANNOT teach it precisely because it would involve the government in promoting a religious doctrine.
The creationists got into trouble not for teaching creationism but by trying to force state run and funded schools to teach it.
Free exercise and anti-establishment are two sides of the coin.

[Sheilbh]

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.  People cannot simple assert a position as true and expect the court to accept that position if the evidence before the court does not support it.

This has nothing to do with enshrining a religious belief as a fact.  It is simply the court considering the evidence before it in the application of a statute or in the case of a constitutional challege attempting to strike down the statute.

Yep. That's where the religious belief would matter. But whether he can give a get or not is more about religious practice than religious belief (obviously the practice is underpinned by belief, but belief isn't necessary) - whether he can give a get or not is as much an issue of fact as whether one can validly perform a religious marriage, or have been baptised. You ask a Rabbi or a Canon lawyer. Unless what you're talking about the religious belief doesn't matter.

you have it backwards.
The right of a religious community to teach creationism cannot be abridged.
But a public, government run school CANNOT teach it precisely because it would involve the government in promoting a religious doctrine.

What about a publicly funded faith school? Or do you not have them?

[Malthus]

So, if I was an Indian, I can "join" the Native American Church and take Peyote legally ... and the US Court won't question it because, no matter what the statute says, the US Court won't evaluate "... whether particular religious practices or observances are necessarily orthodox or even mandated by an organized religious hierarchy"? 

Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.
—42 U.S.C. 1996A(b)(1).

Yes, if you are a registered member of a federally recognized Indian tribe.
The tricky part with this statue is the overlay with broad Congressional "plenary" power over all Indian affairs.

It strikes me as very wierd to have statutes requiring an evaluation of the "bona fides" of a belief, but courts who are unwilling to investigate the issue.

The courts are willing to investigate, but most likely in the sense of assessing overt indicia of truthfulness.  If a person claims that their religion requires them to wear a vintage Brooklyn Dodgers baseball cap at all time, and if the employer presents evidence of dozens of facebook pictures of that person sans cap, they are going to a tough go showing sincerity of belief.  But the court is unlikely to descend into the philophical morass of making determinations of whether the theological bona fides of the Church of Ebbets are really legit.

Fair enough.

In the case of the Ontario statute, the Courts are not required to do even as much as that, and in fact on its face it does not require an investigation into the truthfullness of sincerety of the belief at all - merely a declaration that a religious barrier to remarraige exists is sufficient.

Presumably the other party could contest that requirement, either by claiming such a barrier does not exist, or that belief in such a barrier is not sincrely held - or alternatively, that they should not be required to make the required counter-declaration that they have removed all such barriers because their own religious beliefs prohibit them from doing that.

But such arguments are not expressly provided for in the legislation. It is entirely possible that the Canadian courts would approach the matter in the same spirit as the US courts - i.e., no deep analysis of the sincerity of beliefs, aside from indicia of truthfulness.

[grumbler]

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.  People cannot simple assert a position as true and expect the court to accept that position if the evidence before the court does not support it.

I understand the point that you are trying to make, but you miss the point that I am trying to make:  that there is no evidence regarding a religious belief.  Your argument, that religious belief is a matter of weighing "evidence" (whatever that is) about belief just like weighing evidence about guilt, makes no sense to me.  Belief, unlike guilt, is a purely subjective matter.  The analogy to determining religious belief by analyzing "the evidence" is determining the number of angels that can dance on the head of a pin by examining "the evidence."

[crazy canuck]

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.  People cannot simple assert a position as true and expect the court to accept that position if the evidence before the court does not support it.

I understand the point that you are trying to make, but you miss the point that I am trying to make:  that there is no evidence regarding a religious belief.

I have no idea why you are making that assertion.  JR's explanation that US courts will simply refuse to make the inquiry makes more sense.  There is certainly a lot of evidence that might be put before a court to test the bona fides of an asserted religious belief.  I assume that you made this post without the benefit of reading the rest of the thread in which I set out the tests a Canadian court will consider based on the evidence you assert does not exist.

[grumbler]

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

I see where the difference lies in our interpretations; I don't think an American court would use the concept of "[t]he individual must objectively believe that he or she is under a religious obligation."  It is clear, though, that Canadian courts hold the belief is a matter of objective truth.  That's just an area where I and the Canadian system will have to agree to disagree.

[crazy canuck]

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

I see where the difference lies in our interpretations; I don't think an American court would use the concept of "[t]he individual must objectively believe that he or she is under a religious obligation."  It is clear, though, that Canadian courts hold the belief is a matter of objective truth.  That's just an area where I and the Canadian system will have to agree to disagree.

No actually the test is subjective.  There is no need to prove that the belief is objectively held as that would be impossible or at least would create substantial barriers. 

Subjective = does that individual sincerely believe x

objective = would a reasonable person in that position believe x.

I think we can all agree the objective test has no place in this sort of analysis.

[Malthus]

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.  People cannot simple assert a position as true and expect the court to accept that position if the evidence before the court does not support it.

I understand the point that you are trying to make, but you miss the point that I am trying to make:  that there is no evidence regarding a religious belief.  Your argument, that religious belief is a matter of weighing "evidence" (whatever that is) about belief just like weighing evidence about guilt, makes no sense to me.  Belief, unlike guilt, is a purely subjective matter.  The analogy to determining religious belief by analyzing "the evidence" is determining the number of angels that can dance on the head of a pin by examining "the evidence."

See the discussion JR and I are having re: "assessing overt indicia of truthfulness" (his phrase).

[The Minsky Moment]

What about a publicly funded faith school? Or do you not have them?

Verboten.