Oh, those wacky Jews! :Joos:
No, but seriously, wtf is wrong with these people? :blink:
QuoteThe two rabbis offered an unusual service to Jewish women who could not get their husbands to agree to a divorce, according to the Federal Bureau of Investigation. For a fee, they would convene a rabbinical court and authorize the use of violence to get a recalcitrant husband to agree to a divorce, the F.B.I. said.
But that was not all, according to court papers unsealed Thursday morning. They were also willing to employ hired muscle, two men known as Ariel and Yaakov, to actually kidnap the man and torture him, until he pledged to divorce his wife, according a criminal complaint in Federal District Court in Newark.
Two men whom the authorities describe as rabbis – Martin Wolmark and Mendel Epstein – as well as a third man, Ariel Potash, have been charged in a kidnapping conspiracy according to court papers. In connection to the case, F.B.I. agents carried out raids in South Brooklyn and Monsey, N.Y., in Rockland County on Wednesday evening.
In some Orthodox Jewish communities, a divorce is granted only once a husband provides his wife with a document known as a get. And stories of the frustrations and obstacles that women face in their quest to obtain a get are commonplace. While a woman can sue in rabbinical court to try to secure a get, some husbands do not comply with the court's edict.
That, according to the Federal Bureau of Investigation, is where the rabbis came in. "You need special rabbis who are going to take this thing and see it through to the end," Rabbi Wolmark said in a recorded telephone conversation with an undercover F.B.I. agent posing as a woman whose husband would not grant her a get.
During the telephone conversation, on Aug. 7, Rabbi Wolmark referred the undercover agent to Rabbi Epstein, whom he described as "a hired hand" who could help. The fee was high, according to the court papers: $10,000 to pay the rabbinical court to approve the kidnapping and an additional $50,000 or more to actually carry out the kidnapping.
In a subsequent meeting at Rabbi Epstein's home in Ocean County, New Jersey, Rabbi Epstein explained what he planned to do. "Basically what we are going to be doing is kidnapping a guy for a couple of hours and beating him up and torturing him and then getting him to give the get," according to a recorded conversation that is described in the criminal complaint. Rabbi Epstein, according to the court papers, mentioned that his "tough guys" utilized cattle prods and other torture techniques that were not likely to leave a mark.
Should the husband go to the police, Rabbi Epstein said, it was important that there were no obvious signs of injury. Without such physical evidence, Rabbi Epstein said, the police were unlikely to probe too deeply into the affairs of the Orthodox Jewish community, which can appear impenetrable to outsiders.
"Basically the reaction of the police is, if the guy does not have a mark on him then, uh, is there some Jewish crazy affair here, they don't want to get involved," Rabbi Epstein explained, according to the criminal complaint.
The court papers, which outline the undercover F.B.I. sting operation, do not describe instances in which the defendants actually carried out such kidnappings. But the authorities said that the evidence in the case includes a recorded conversation in which Rabbi Epstein "claimed that his organization kidnapped one recalcitrant husband approximately every year and a half."
More examples of the over-bearing state interfering with freedom of religion. This is almost as bad as removing nativity scenes from public schools.
Quote"You need special rabbis who are going to take this thing and see it through to the end,"
Times are truly desperate when you need to put the feared special rabbis on the job.
It's Ultra-Orthodox feminism in action. ;)
This sort of thing has been going on for years and years - albeit without thugs-for-hire. I heard about it when I was a kid. Only the ultra-Orthodox do it, of course.
The issue is this: it is part of The Law(tm) that a man must grant a divorce - known as a "get". It is also part of The Law(tm) that a man must provide a "get" when asked by his wife. In short, the whole "the man must agree" thing is a formality - under The Law(m) - but it must be done because, as you know, an ultra-Orthodox Jew simply cannot short-circuit a meaningless formality. Half of Judaism (at least, of the Orthodox variety) is finding work-arounds to avoid short-circuiting meaningless formalities. ;)
The problem then arises - what happens when a man, let's call him "Mr. Asshole", doesn't do what The Law(tm) says he's supposed to? Say, he's a bitter guy and hates his wife, and doesn't feel like remarrying.
Well, he can simply refuse to grant the get. That fucks up his wife's ability to remarry. She can't do it without the get, and there is no mechanism under The Law(tm) to
force Mr. Asshole to do what he's supposed to do. So Mr. Asshole "gets" ( ;) ) a veto over his ex-wife's sex life (because, being Orthodox, she presumably won't have sex without being married). Of course, neither can he, but maybe he doesn't give a shit - he's already flouting The Law(tm), so maybe he's getting it on the side anyway.
What to do? Well, the first thing is that Mr. Asshole gets ostracized. Maybe he doesn't care.
Next thing, traditionally, was for a posse of the congregation - the younger, hairier and meaner ones, often those related to ex-Mrs. Asshole - to "reason" with Mr. Asshole in private. What form this "reasoning" took ... well, let's just say, what's done in the yeshiva stays in the yeshiva ...
These days, in Ontario at least, the courts have decided to intervene and give Mr. Asshole a purely
legal beating, instead of condoning assault and religious vigilanteism.
From the Family Law Act:
QuoteStatement re removal of barriers to remarriage
(4) A party to an application under section 7 (net family property), 10 (questions of title between spouses), 33 (support), 34 (powers of court) or 37 (variation) may serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that,
(a) the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith; and
(b) the other party has not done so, despite a request. R.S.O. 1990, c. F.3, s. 2 (4).
Idem
(5) Within ten days after service of the statement, or within such longer period as the court allows, the party served with a statement under subsection (4) shall serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith. R.S.O. 1990, c. F.3, s. 2 (5).
Dismissal, etc.
(6) When a party fails to comply with subsection (5),
(a) if the party is an applicant, the proceeding may be dismissed;
(b) if the party is a respondent, the defence may be struck out.
In short - fail to give a "get" and your wife cleans up in the courts - she gets everything.
I'm confused. I assume that all of this is in the religious courts, not the legal ones. In other words, a woman can get a legal divorce, and then have to fight with Mr Asshole to get the religious one, in order to remarry, right?
So how does the whole "she gets all his stuff" fit into it?
Quote from: merithyn on October 10, 2013, 12:35:17 PM
I'm confused. I assume that all of this is in the religious courts, not the legal ones. In other words, a woman can get a legal divorce, and then have to fight with Mr Asshole to get the religious one, in order to remarry, right?
So how does the whole "she gets all his stuff" fit into it?
No, not so. This is secular legislation.
The "get" is a purely religious barrier to remarriage. If a woman doesn't get the "get" from Mr. Asshole, she can get a legal divorce in an Ontario court all right, but her religious community will not view that divorce as "valid". If she has a "get" in hand, they will view her divorce as valid.
Assuming she is religious herself, or cares what her religious community thinks of her, having an invalid divorce can cause her great unhappiness - her subsequent remarriage would be considered "bigamous" and her kids by that marriage "bastards".
Under this legislation, she can go to the
purely secular Ontario court on divorce and say "Know what, your Honour? Mr. Asshole refuses to give me a get, so I can't remarry in my faith even with this divorce you are so abily ruling on".
The Court then, in essence, turns around and tells Mr. Asshole "well, Mr. Asshole, you have a choice. We won't interfere with your exercise of religion - that's between you and your God - but we will do this: if you refuse to give your ex-wife a "get", we will rule in her favour on
everything. You will be *so* fucked, you won't have two cents to rub together when we are done with you. So, are you gonna stand on principle or what?"
:blink:
Wow. That's... impressive. Seems odd that a secular court would agree to go along with this.
Quote from: merithyn on October 10, 2013, 12:55:21 PM
:blink:
Wow. That's... impressive. Seems odd that a secular court would agree to go along with this.
'Freedom of religion' doesn't mean 'freedom to act like an asshole without consequences'. ;)
I'm in favour of this sort of legislation - it solves an actual problem that would otherwise sometimes lead to violence (as in the OP), without actually interfereing with freedoms.
Yup. It's imminently sensible, IMO.
I don't think it should be the responsibility of the justice system to fix a given religion's inconsistencies.
Quote from: Admiral Yi on October 10, 2013, 01:28:34 PM
I don't think it should be the responsibility of the justice system to fix a given religion's inconsistencies.
I'm inclined to agree. If you choose to live in a fundamentalist society, you choose to deal with the consequences.
Quote from: Admiral Yi on October 10, 2013, 01:28:34 PM
I don't think it should be the responsibility of the justice system to fix a given religion's inconsistencies.
It isn't doing that.
It is threatening punishment for failure to remove a religious bar to remarriage. In the specific case of Judaism, the religion itself is not "inconsistent" - the man is obligated to do just that - provide the 'get'.
Quote from: Malthus on October 10, 2013, 01:37:44 PM
Quote from: Admiral Yi on October 10, 2013, 01:28:34 PM
I don't think it should be the responsibility of the justice system to fix a given religion's inconsistencies.
It isn't doing that.
It is threatening punishment for failure to remove a religious bar to remarriage. In the specific case of Judaism, the religion itself is not "inconsistent" - the man is obligated to do just that - provide the 'get'.
Still, the point is that it's a religious matter. If religious authorities lack the means to enforce a religious environment, then it's their problem to solve, not secular legal system's.
Quote from: DGuller on October 10, 2013, 01:39:01 PMStill, the point is that it's a religious matter. If religious authorities lack the means to enforce a religious environment, then it's their problem to solve, not secular legal system's.
Why?
Anyone who ever watched The Sopranos would have known all about this.
There is an episode where the Jew that often pals around with the Sopranos (and has a thing for black women) introduces Tony & crew to an Orthodox Jew that needs the help of the mob. The situation being, the Orthodox Jew has a daughter who is married to an asshole. Tony only cares because the Orthodox Jew is rich and owns a hotel, which his asshole son-in-law manages. The Orthodox Jew and his son, want their daughter/sister to get her divorce, but without having to part with any financial interest in the hotel. The asshole son-in-law insists that since he has slaved away at the hotel for years managing it, he is going to demand a share of the hotel in exchange for the get--which he is 100% unwilling to grant otherwise. So the Orthodox Jew offers Tony a share of the business in exchange for roughing up his son and law and securing a get (I'm guessing that they reasoned the share they were offering Tony was at least smaller than what the son in law was going to demand himself.)
Tony and gang basically kidnap the son-in-law and torture him for 10-11 hours, and are fairly shocked at how resilient he is. He basically says he'll never give them what they want--and they can't just kill him, because the Orthodox Jew has specifically said they can't do that. So finally they get out a pair of bolt cutters and threaten to cut his balls off, at which point he relents and gives the get.
Then, he goes to his father in law and offers to give the get "willingly" for an even lower share of the hotel than Tony was going to get. The father in law agrees, and informs Tony that they "didn't need your help after all, so we settled for him getting a smaller share." Tony just smiles and says, "if you want to give him part of your share, that's fine. But my share has already been agreed upon and paid for." The Orthodox Jew then realizes he's dealing with a guy that runs a mob family, and he's just lost something like 25% of his hotel to Tony.
Get outta here.
Quote from: Malthus on October 10, 2013, 01:37:44 PM
It isn't doing that.
It is threatening punishment for failure to remove a religious bar to remarriage. In the specific case of Judaism, the religion itself is not "inconsistent" - the man is obligated to do just that - provide the 'get'.
Well, since we have a case here of a man who did not, clearly he is not "obligated."
The court has no place taking sides in a purely religious dispute. No way this would pass a constitutionality test in the US.
Quote from: DGuller on October 10, 2013, 01:39:01 PM
Quote from: Malthus on October 10, 2013, 01:37:44 PM
Quote from: Admiral Yi on October 10, 2013, 01:28:34 PM
I don't think it should be the responsibility of the justice system to fix a given religion's inconsistencies.
It isn't doing that.
It is threatening punishment for failure to remove a religious bar to remarriage. In the specific case of Judaism, the religion itself is not "inconsistent" - the man is obligated to do just that - provide the 'get'.
Still, the point is that it's a religious matter. If religious authorities lack the means to enforce a religious environment, then it's their problem to solve, not secular legal system's.
The secular system isn't "solving" it. "Solving" it would be where the secular courts provide the 'get' themselves. I agree, they shouldn't do that. That is a religious matter.
What the secular courts are doing, is providing a purely secular incentive to not act like an asshole. That's something, IMHO, they *should* do, on matters that are otherwise properly before them. If you act like a dick, why should the Court be *precluded* from taking that into account in their judgment? It's a relevant issue.
The secular court is punishing the guy for doing something that is only important in the context of a religion. I do not see this passing the establishment clause here in the States. I also suspect if an American court had proposed a law like this someone like Jacob would be against it, as would other Canadians like CC and Malthus. But since this is Canadian law we are talking about I suspect they all support it emphatically and point to it as "enlightened multiculturalism", where the same thing if done here would be an example of our dangerous religious fundamentalism :hug:.
Quote from: Malthus on October 10, 2013, 01:44:33 PM
What the secular courts are doing, is providing a purely secular incentive to not act like an asshole. That's something, IMHO, they *should* do, on matters that are otherwise properly before them. If you act like a dick, why should the Court be *precluded* from taking that into account in their judgment? It's a relevant issue.
Because it's not against the law to be a dick.
Quote from: Admiral Yi on October 10, 2013, 01:43:04 PM
Well, since we have a case here of a man who did not, clearly he is not "obligated."
Huh? I don't follow.
People fail to do stuff they are "obligated" to do all the time.
QuoteThe court has no place taking sides in a purely religious dispute. No way this would pass a constitutionality test in the US.
Interesting you should say that ... apparently, some people have argued as you do, and lost.
http://www.womenslaw.org/laws_state_type.php?id=12530&state_code=RL&open_id=12602
QuoteIn 1983, New York State passed the Get Law: Domestic Relations Law §253, which states that prior to a the court granting a civil divorce, both parties to the divorce will take all steps possible to remove any barriers to remarriage that the other party might encounter. This effectively means that in the State of New York, before a civil divorce is finalized, a Jewish husband must grant his wife a get. If you live New York State, be sure to talk to your civil lawyer and your rabbi about how to ensure that your husband gives you a get.
In 2007, the Maryland State Senate failed to pass a similar law, Bill 533. No state other than New York currently has get legislation. There is, however, case law in the statutory annotations of many states; this means that in any state, a court may or may not order a husband to give a get, depending on the circumstances of the case. Get cases are sometimes argued under the "free exercise" clause of the First Amendment of the United States Constitution, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For example, in one New Jersey divorce case, the court decided that forcing the husband to give a get fulfilled the secular purpose of completing the divorce; since no religious ritual was required in order to obtain the get, and since the get in no way impacted his ability to practice his religion, his First Amendment rights were not infringed by this requirement.
http://law.onecle.com/new-york/domestic-relations/DOM0253_253.html
Quote from: Admiral Yi on October 10, 2013, 01:48:19 PM
Quote from: Malthus on October 10, 2013, 01:44:33 PM
What the secular courts are doing, is providing a purely secular incentive to not act like an asshole. That's something, IMHO, they *should* do, on matters that are otherwise properly before them. If you act like a dick, why should the Court be *precluded* from taking that into account in their judgment? It's a relevant issue.
Because it's not against the law to be a dick.
Thank Hod!
Quote from: OttoVonBismarck on October 10, 2013, 01:46:29 PM
The secular court is punishing the guy for doing something that is only important in the context of a religion. I do not see this passing the establishment clause here in the States. I also suspect if an American court had proposed a law like this someone like Jacob would be against it, as would other Canadians like CC and Malthus. But since this is Canadian law we are talking about I suspect they all support it emphatically and point to it as "enlightened multiculturalism", where the same thing if done here would be an example of our dangerous religious fundamentalism :hug:.
... and I think you are full of shit :hug:. See my post above, concerning the
exact same thing happening under US law.
Quote from: katmai on October 10, 2013, 01:50:14 PM
Quote from: Admiral Yi on October 10, 2013, 01:48:19 PM
Quote from: Malthus on October 10, 2013, 01:44:33 PM
What the secular courts are doing, is providing a purely secular incentive to not act like an asshole. That's something, IMHO, they *should* do, on matters that are otherwise properly before them. If you act like a dick, why should the Court be *precluded* from taking that into account in their judgment? It's a relevant issue.
Because it's not against the law to be a dick.
Thank Hod!
If it was, Languish would basically be a criminal enterprise.
Quote from: Admiral Yi on October 10, 2013, 01:48:19 PM
Quote from: Malthus on October 10, 2013, 01:44:33 PM
What the secular courts are doing, is providing a purely secular incentive to not act like an asshole. That's something, IMHO, they *should* do, on matters that are otherwise properly before them. If you act like a dick, why should the Court be *precluded* from taking that into account in their judgment? It's a relevant issue.
Because it's not against the law to be a dick.
They are not being charged with "being a dick".
The court is choosing to exercise its discretion against them because they are being a dick concerning the matter before them.
If you think this doesn't happen all the time, it is because you are not a litigator. :lol:
Quote from: Jacob on October 10, 2013, 01:40:08 PM
Quote from: DGuller on October 10, 2013, 01:39:01 PMStill, the point is that it's a religious matter. If religious authorities lack the means to enforce a religious environment, then it's their problem to solve, not secular legal system's.
Why?
Because it's too different systems of laws and enforcement of such laws, and they should not intersect. The problem is contained well-enough in the religious world, it doesn't impact any basic freedom that is guaranteed by the secular constitution. It's not like you can't get divorced without a get, you just can't be accepted by the religious community if you act like you're divorced when you didn't get a get. Well, that's the problem of the person wanting to be part of the religious community and the religious community itself that imposes laws it has no power to enforce.
We're not talking about things like female circumcision here, where religious laws come in conflict with the secular law.
Quote from: OttoVonBismarck on October 10, 2013, 01:46:29 PM
The secular court is punishing the guy for doing something that is only important in the context of a religion.
I think this is the part that rubs me wrong about this. That said, I'm glad on the flipside that this sort of thing helps negate the need for said torturing.
The Orthodox are weird and kinda bad. It's not news.
Quote from: DGuller on October 10, 2013, 01:54:18 PM
Quote from: Jacob on October 10, 2013, 01:40:08 PM
Quote from: DGuller on October 10, 2013, 01:39:01 PMStill, the point is that it's a religious matter. If religious authorities lack the means to enforce a religious environment, then it's their problem to solve, not secular legal system's.
Why?
Because it's too different systems of laws and enforcement of such laws, and they should not intersect. The problem is contained well-enough in the religious world, it doesn't impact any basic freedom that is guaranteed by the secular constitution. It's not like you can't get divorced without a get, you just can't be accepted by the religious community if you act like you're divorced when you didn't get a get. Well, that's the problem of the person wanting to be part of the religious community and the religious community itself that imposes laws it has no power to enforce.
We're not talking about things like female circumcision here, where religious laws come in conflict with the secular law.
So what?
I'm not sure in what way my answer was incomplete.
Quote from: DGuller on October 10, 2013, 01:57:09 PM
I'm not sure in what way my answer was incomplete.
I have no idea why you think the courts should
not take into account someone being an asshole where the form that assholery takes happens to only be important to some sect of religious people.
Quote from: Malthus on October 10, 2013, 01:51:28 PM
Quote from: OttoVonBismarck on October 10, 2013, 01:46:29 PM
The secular court is punishing the guy for doing something that is only important in the context of a religion. I do not see this passing the establishment clause here in the States. I also suspect if an American court had proposed a law like this someone like Jacob would be against it, as would other Canadians like CC and Malthus. But since this is Canadian law we are talking about I suspect they all support it emphatically and point to it as "enlightened multiculturalism", where the same thing if done here would be an example of our dangerous religious fundamentalism :hug:.
... and I think you are full of shit :hug:. See my post above, concerning the exact same thing happening under US law.
Not so fast. The authority to grant a divorce is a valid sphere of State law, and that is all the New York Law on Domestic Relations sec. 253 appears to regulate. It simply says that religious marriages solemnized under the specified definitions, cannot be granted a civil divorce without the party requesting the divorce signing a document affirming they have removed any religious inhibition on the other party being remarried.
So if I was a man wanting to divorce my wife, and my religion required me as a man to give my wife some sort of "grant" to allow her to remarry, this law means that in the State of New York in order to get a civil divorce from my wife I would have to sign a document promising that I had actually given that grant.
It does not appear to work the opposite way, so if I'm a man whose religion requires my wife to give me permission to remarry and I wish to divorce my wife, the New York law does not require that. It only requires that the party who has filed for divorce signs the document. So in the situation of a wife wanting a divorce from her husband and wanting him to give her a get, I don't believe sec 253 of New York Law on Domestic Relations would apply.
Further, at the end of said law it goes on to say that the court shall not inquire into any religious matter, and that for its purposes it will not investigate the
truthfulness of any person signing the court document saying they are giving the religious waiver. So, if I one wanted they are legally permitted to sign the court document required to get the divorce, but can then within their religious community still withhold the permission, because the court explicitly is barred from following up on it or investigating the veracity of the attestation given.
Doesn't seem even remotely similar to a law where a court strips someone of all their property punitively to try and compel them to do something.
Quote from: Malthus on October 10, 2013, 02:00:01 PM
Quote from: DGuller on October 10, 2013, 01:57:09 PM
I'm not sure in what way my answer was incomplete.
I have no idea why you think the courts should not take into account someone being an asshole where the form that assholery takes happens to only be important to some sect of religious people.
Because he's being an asshole only in the religious context. Separation of state and religion goes both ways.
Quote from: Malthus on October 10, 2013, 12:48:45 PM
Quote from: merithyn on October 10, 2013, 12:35:17 PM
I'm confused. I assume that all of this is in the religious courts, not the legal ones. In other words, a woman can get a legal divorce, and then have to fight with Mr Asshole to get the religious one, in order to remarry, right?
So how does the whole "she gets all his stuff" fit into it?
No, not so. This is secular legislation.
The "get" is a purely religious barrier to remarriage. If a woman doesn't get the "get" from Mr. Asshole, she can get a legal divorce in an Ontario court all right, but her religious community will not view that divorce as "valid". If she has a "get" in hand, they will view her divorce as valid.
Assuming she is religious herself, or cares what her religious community thinks of her, having an invalid divorce can cause her great unhappiness - her subsequent remarriage would be considered "bigamous" and her kids by that marriage "bastards".
Under this legislation, she can go to the purely secular Ontario court on divorce and say "Know what, your Honour? Mr. Asshole refuses to give me a get, so I can't remarry in my faith even with this divorce you are so abily ruling on".
The Court then, in essence, turns around and tells Mr. Asshole "well, Mr. Asshole, you have a choice. We won't interfere with your exercise of religion - that's between you and your God - but we will do this: if you refuse to give your ex-wife a "get", we will rule in her favour on everything. You will be *so* fucked, you won't have two cents to rub together when we are done with you. So, are you gonna stand on principle or what?"
In Mississippi, the court will throw you in jail on civil contempt until you provide the get. True story.
Quote from: OttoVonBismarck on October 10, 2013, 02:00:51 PM
Quote from: Malthus on October 10, 2013, 01:51:28 PM
Quote from: OttoVonBismarck on October 10, 2013, 01:46:29 PM
The secular court is punishing the guy for doing something that is only important in the context of a religion. I do not see this passing the establishment clause here in the States. I also suspect if an American court had proposed a law like this someone like Jacob would be against it, as would other Canadians like CC and Malthus. But since this is Canadian law we are talking about I suspect they all support it emphatically and point to it as "enlightened multiculturalism", where the same thing if done here would be an example of our dangerous religious fundamentalism :hug:.
... and I think you are full of shit :hug:. See my post above, concerning the exact same thing happening under US law.
Not so fast. The authority to grant a divorce is a valid sphere of State law, and that is all the New York Law on Domestic Relations sec. 253 appears to regulate. It simply says that religious marriages solemnized under the specified definitions, cannot be granted a civil divorce without the party requesting the divorce signing an affidavit affirming they have removed any religious inhibition on the other party being remarried.
So if I was a man wanting to divorce my wife, and my religion required me as a man to give my wife some sort of "grant" to allow her to remarry, this law means that in the State of New York in order to get a civil divorce from my wife I would have to sign a waiver promising that I had actually given that grant.
It does not appear to work the opposite way, so if I'm a man whose religions requires my wife to give me permission to remarry and I wish to divorce my wife, the New York law does not require that. It only requires that the party who has filed for divorce signs the waiver. So in the situation of a wife wanting a divorce from her husband and wanting him to give her a get, I don't believe sec 253 of New York Law on Domestic Relations would apply.
Further, at the end of said law it goes on to say that the court shall not inquire into any religious matter, and that for its purposes it will not investigate the truthfulness of any person signing the court document saying they are giving the religious waiver. So, if I one wanted they are legally permitted to sign the court document required to get the divorce, but can then within their religious community still withhold the permission, because the court explicitly is barred from following up on it or investigating the veracity of the attestation given.
Doesn't seem even remotely similar to a law where a court strips someone of all their property punitively to try and compel them to do something.
Did you not bother to read the commentary on the case law in various other states ... and how Constitutional arguments against orders of the sort contemplated in the Ontario law have been tried and failed? :hmm:
For the reading-impaired, I repeat it:
QuoteThere is, however, case law in the statutory annotations of many states; this means that in any state, a court may or may not order a husband to give a get, depending on the circumstances of the case. Get cases are sometimes argued under the "free exercise" clause of the First Amendment of the United States Constitution, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For example, in one New Jersey divorce case, the court decided that forcing the husband to give a get fulfilled the secular purpose of completing the divorce; since no religious ritual was required in order to obtain the get, and since the get in no way impacted his ability to practice his religion, his First Amendment rights were not infringed by this requirement.
Emphasis. Added.
Quote from: Malthus on October 10, 2013, 01:50:02 PM
Huh? I don't follow.
People fail to do stuff they are "obligated" to do all the time.
Apparently there are no consequences for failing to fulfill this obligation within the ultra-Orthodox faith. Thus, an inconsistency. The state should not be in the business of punishing religious transgressions.
You suggested in an earlier post that Canadian courts use their power in matters unrelated to the get to influence the Jewish dude. Is that accurate? To me that sounds like the court blackmailing the guy into granting a get.
Quote from: DGuller on October 10, 2013, 02:02:35 PM
Quote from: Malthus on October 10, 2013, 02:00:01 PM
Quote from: DGuller on October 10, 2013, 01:57:09 PM
I'm not sure in what way my answer was incomplete.
I have no idea why you think the courts should not take into account someone being an asshole where the form that assholery takes happens to only be important to some sect of religious people.
Because he's being an asshole only in the religious context. Separation of state and religion goes both ways.
As I have demonstrated, the US courts seem to agree that "seperation of state and religion" has nothing to do with it.
Quote from: Malthus on October 10, 2013, 02:11:30 PM
As I have demonstrated, the US courts seem to agree that "seperation of state and religion" has nothing to do with it.
As Biscuit has demonstrated, a crucial difference is that the US courts have not put themselves in the position of forcing a man to provide a get against his will.
Quote from: Admiral Yi on October 10, 2013, 02:09:37 PM
Quote from: Malthus on October 10, 2013, 01:50:02 PM
Huh? I don't follow.
People fail to do stuff they are "obligated" to do all the time.
Apparently there are no consequences for failing to fulfill this obligation within the ultra-Orthodox faith. Thus, an inconsistency. The state should not be in the business of punishing religious transgressions.
You are wrong. There are "consequences" both religious and non-religious. The guy could have orders made against him by the Jewish religious court, the Bet Din. The guy could be ostracized. The guy could, as in the article in the OP, be beaten to a pulp.
However, if the guy doesn't give a shit, he can take the ostracism, the religious court rulings and the beatings.
QuoteYou suggested in an earlier post that Canadian courts use their power in matters unrelated to the get to influence the Jewish dude. Is that accurate? To me that sounds like the court blackmailing the guy into granting a get.
How is a divorce a matter "unrelated"? Seems quite related. :hmm:
It's like saying a wedding in a Church is "unrelated" to divorce laws, beacuse it takes place in a Church. Obviously, matters of marriage and divorce involve issues of religion all the time, because marriage is, in many if not most cases, a religious ceremony given secular, legal meaning.
Quote from: Malthus on October 10, 2013, 02:23:15 PM
You are wrong. There are "consequences" both religious and non-religious. The guy could have orders made against him by the Jewish religious court, the Bet Din. The guy could be ostracized. The guy could, as in the article in the OP, be beaten to a pulp.
However, if the guy doesn't give a shit, he can take the ostracism, the religious court rulings and the beatings.
Seems to me the only place the state should be involved here is punishing those who administer beatings. Rest of that has nothing to do with the state.
It wasn't clear from your earlier post what matter the court was using to blackmail the dude, which is why I asked for clarification.
So we're talking about child custody, division of assets, that sort of thing? Not sure that makes it any better. "We'll give your ex-wife the house unless you fulfill this religious obligaion."
Quote from: Admiral Yi on October 10, 2013, 02:14:18 PM
Quote from: Malthus on October 10, 2013, 02:11:30 PM
As I have demonstrated, the US courts seem to agree that "seperation of state and religion" has nothing to do with it.
As Biscuit has demonstrated, a crucial difference is that the US courts have not put themselves in the position of forcing a man to provide a get against his will.
Huh? Are you just not reading stuff here?
I repeat:
QuoteThere is, however, case law in the statutory annotations of many states; this means that in any state, a court may or may not order a husband to give a get, depending on the circumstances of the case. Get cases are sometimes argued under the "free exercise" clause of the First Amendment of the United States Constitution, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For example, in one New Jersey divorce case, the court decided that forcing the husband to give a get fulfilled the secular purpose of completing the divorce; since no religious ritual was required in order to obtain the get, and since the get in no way impacted his ability to practice his religion, his First Amendment rights were not infringed by this requirement.
How is "... the court decided that forcing the husband to give a get ..." in New Jersey any different from the Ontario situation?
Or if you don't believe that site, what about believing Scipio?
QuoteIn Mississippi, the court will throw you in jail on civil contempt until you provide the get. True story.
That's two states ...
Malthus, take it easy, we're not debating circumcision here.
I agree with the Canadians.
Last point conceded Malthus.
Don't agree with it in the US either.
Quote from: Admiral Yi on October 10, 2013, 02:26:43 PM
It wasn't clear from your earlier post what matter the court was using to blackmail the dude, which is why I asked for clarification.
So we're talking about child custody, division of assets, that sort of thing? Not sure that makes it any better. "We'll give your ex-wife the house unless you fulfill this religious obligaion."
That's not exactly how it works. I posted the actual legislation upthread.
Way it works is, the Court will strike your defence or refuse to allow you to pursue an action in respect of certain stipulated matters (basically, money issues like division of property or support) if you fail to remove a religious barrier to remarriage that is under your control, such as providing the get.
Essentially, if you refuse, the other person's case gets heard. That doesn't necessarily mean she wins everything - that was my hyperbole, it is still all within the court's discretion - but usually, if you piss off the court to the extent that they strike your claims or defences, it isn't good for you.
Quote from: Admiral Yi on October 10, 2013, 02:32:47 PM
Don't agree with it in the US either.
Same here. I don't see any difference between these kinds of cases, and the cases where a Catholic wife resists an annulment. Fucked up religious matters should stay inside religion, unless they run afoul of secular laws.
Obviously it's a good thing for the people involved that assholes are compelled to give a get, but sometimes heart-warming results are achieved by bending the rules and principles, and IMO it's one of these cases.
Quote from: Malthus on October 10, 2013, 02:34:43 PM
That's not exactly how it works. I posted the actual legislation upthread.
Way it works is, the Court will strike your defence or refuse to allow you to pursue an action in respect of certain stipulated matters (basically, money issues like division of property or support) if you fail to remove a religious barrier to remarriage that is under your control, such as providing the get.
Essentially, if you refuse, the other person's case gets heard. That doesn't necessarily mean she wins everything - that was my hyperbole, it is still all within the court's discretion - but usually, if you piss off the court to the extent that they strike your claims or defences, it isn't good for you.
So, blackmail.
Quote from: DGuller on October 10, 2013, 02:36:57 PM
Quote from: Admiral Yi on October 10, 2013, 02:32:47 PM
Don't agree with it in the US either.
Same here. I don't see any difference between these kinds of cases, and the cases where a Catholic wife resists an annulment. Fucked up religious matters should stay inside religion, unless they run afoul of secular laws.
Obviously it's a good thing for the people involved that assholes are compelled to give a get, but sometimes heart-warming results are achieved by bending the rules and principles, and IMO it's one of these cases.
... except that you have failed to articulate any rules or principles being "bent" other than 'I don't like it, no sirree'.
:mellow:
Quote from: Admiral Yi on October 10, 2013, 02:38:51 PM
Quote from: Malthus on October 10, 2013, 02:34:43 PM
That's not exactly how it works. I posted the actual legislation upthread.
Way it works is, the Court will strike your defence or refuse to allow you to pursue an action in respect of certain stipulated matters (basically, money issues like division of property or support) if you fail to remove a religious barrier to remarriage that is under your control, such as providing the get.
Essentially, if you refuse, the other person's case gets heard. That doesn't necessarily mean she wins everything - that was my hyperbole, it is still all within the court's discretion - but usually, if you piss off the court to the extent that they strike your claims or defences, it isn't good for you.
So, blackmail.
Yeah, like the obligation to come to the court with "clean hands" if you want an equitable remedy from them is "blackmail". :hmm:
http://legal-dictionary.thefreedictionary.com/clean+hands+doctrine
Quote from: Malthus on October 10, 2013, 02:39:40 PM
... 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.
Quote from: DGuller on October 10, 2013, 02:48:24 PM
Quote from: Malthus on October 10, 2013, 02:39:40 PM
... 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"? :huh: 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?
QuoteMalthus, 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. :console: Better?
Quote from: DGuller on October 10, 2013, 02:36:57 PM
Same here. I don't see any difference between these kinds of cases, and the cases where a Catholic wife resists an annulment. Fucked up religious matters should stay inside religion, unless they run afoul of secular laws.
There's no element of choice in annulment. If there's grounds for annulment it'll be heard by a Church court - it's a matter of evidence, not consent.
Quote from: Malthus on October 10, 2013, 02:55:38 PM
But fair enough - you haven't articulated any rules or principles other than those demonstrated to be irrelevant. :console: Better?
:mellow:
Very grumbleresque declaration of victory.
Malthus, I'm done here. If you think your tone and manner of discussion throughout this thread was appropriate, then it's a bigger problem for you than it is for me.
Quote from: Admiral Yi on October 10, 2013, 03:00:11 PM
Quote from: Malthus on October 10, 2013, 02:55:38 PM
But fair enough - you haven't articulated any rules or principles other than those demonstrated to be irrelevant. :console: Better?
:mellow:
Very grumbleresque declaration of victory.
It's an invitation to sharpen the argument. Prove me wrong. :)
Quote from: Malthus on October 10, 2013, 03:08:09 PM
It's an invitation to sharpen the argument. Prove me wrong. :)
Your arguments all suck and I win. :)
Quote from: DGuller on October 10, 2013, 03:04:57 PM
Malthus, I'm done here. If you think your tone and manner of discussion throughout this thread was appropriate, then it's a bigger problem for you than it is for me.
I don't see how Malthus is being hostile in his arguments either. I think you're reading a tone into his posts that isn't necessarily there.
Quote from: DGuller on October 10, 2013, 03:04:57 PM
Malthus, I'm done here. If you think your tone and manner of discussion throughout this thread was appropriate, then it's a bigger problem for you than it is for me.
:huh:
Okay ...
Quote from: Admiral Yi on October 10, 2013, 03:08:40 PM
Quote from: Malthus on October 10, 2013, 03:08:09 PM
It's an invitation to sharpen the argument. Prove me wrong. :)
Your arguments all suck and I win. :)
Good.
Now add such details as "proof" and "argument".
Quote from: DGuller on October 10, 2013, 01:39:01 PM
Quote from: Malthus on October 10, 2013, 01:37:44 PM
Quote from: Admiral Yi on October 10, 2013, 01:28:34 PM
I don't think it should be the responsibility of the justice system to fix a given religion's inconsistencies.
It isn't doing that.
It is threatening punishment for failure to remove a religious bar to remarriage. In the specific case of Judaism, the religion itself is not "inconsistent" - the man is obligated to do just that - provide the 'get'.
Still, the point is that it's a religious matter. If religious authorities lack the means to enforce a religious environment, then it's their problem to solve, not secular legal system's.
I think these are the arguments that were given that you seem to have disregarded, Malthus. :)
I don't understand the angst. I don't see this as a seperation issue at all.
Well, except insofar as the secular courts getting mixed up religious marriage in general.
Marriage within a religion is commonly recognized as being secularly valid as well, as long as the religious ceremony is completed properly.
If there is a requirement that hoops X, Y, and Z be jumped through before the religious ceremony which ends that marriage is properly fulfilled, I do not see any reason why a secular court would not hold that
A) Said divorce is not complete until said hoops jumping has been fulfilled (within reason), and
B) Being able to hold participants involved as being secularly responsible for jumping through said hoops in order to allow their spouse to be free to live their lives normally.
I think there is a real issue that has to be recognized - the state, if it is going to recognize religious marriage and religious divorce, has a stake in the process, and hence the power to compel both parties to complete whatever is necessary to allow the other party whatever level of freedom their practice allows.
On the other hand...some religions don't really recognize divorce at all. What about a religion where the "get" is not compelled? Should the spoouse who wants a divorce never be allowed to have one if the other spouse is not obligated to give it?
In other words, what if the crazy fundy Ortho Jew rules said "Wife cannot remarry without a get. Husband is not compelled to give said get"? Then what?
Or for that matter, what if the religion simply states that once married, no-one can ever re-marry, period?
Quote from: Malthus on October 10, 2013, 03:12:29 PM
Good.
Now add such details as "proof" and "argument".
No need until you sharpen your game. :console:
It seems insane for a court to get involved in a religious matter like that. I hope Swedish courts don't do that (but they suck ass bigtime so they probably do).
Quote from: Malthus on October 10, 2013, 02:09:17 PMDid you not bother to read the commentary on the case law in various other states ... and how Constitutional arguments against orders of the sort contemplated in the Ontario law have been tried and failed? :hmm:
No, for the purposes of this internet discussion we about hit my limits of "giving a fuck" after I spent five minutes finding sec. 253 of the New York divorce/marriage law, so I didn't go ahead and read the case law.
QuoteFor the reading-impaired, I repeat it:
QuoteThere is, however, case law in the statutory annotations of many states; this means that in any state, a court may or may not order a husband to give a get, depending on the circumstances of the case. Get cases are sometimes argued under the “free exercise” clause of the First Amendment of the United States Constitution, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” For example, in one New Jersey divorce case, the court decided that forcing the husband to give a get fulfilled the secular purpose of completing the divorce; since no religious ritual was required in order to obtain the get, and since the get in no way impacted his ability to practice his religion, his First Amendment rights were not infringed by this requirement.
Emphasis. Added.
This is talking about New Jersey for one, so that does not invalidate my analysis of New York State's law. I would need to actually read the cases in question and ascertain the circumstances therein, in both Mississippi and New Jersey, to begin to understand whether or not I
should concede this point to you. However, due to my above mentioned hitting of the "give a fuck" limit, I'll skip with that and just assume you're right in how you're reporting the state of the law.
That actually doesn't change my objection, though, specifically wrt Canadian law. It seems that to me U.S. courts occasionally order weird things in civil trials, we've all heard of the strange court orders that pass constitutional muster. So if this is something we do then so be it, and I'm even okay with someone being jailed on civil contempt--a court order is a court order, if it's valid and you willfully disobey it civil contempt is the appropriate remedy.
But it seems like to me in America the position is "we can give you a court order to do this stuff, and if you don't, you're in civil contempt." Okay, I'm not supportive of that, but the process at least passes the smell test. In Canada it seemed like you were saying, "if you don't give the get, we treat the man badly in future proceedings." That would seem to offend justice to me, instead of the court ordering the guy to do something and then punishing him with fines or civil contempt imprisonment for disobeying it you're saying Canadian courts ding him on unrelated issues like child custody and disposition of assets. In the United States those sort of things, handled in a family court, are primarily supposed to be informed by issues relating to the well being of the children and the various laws that govern equitable division of marital assets. It seems perverse to me (if what you suggested is true) if all that goes out the window in Canada if someone refuses to do something. Even civil contempt individuals here still maintain equality under the law in their other court hearings.
Quote from: Berkut on October 10, 2013, 03:15:20 PM
In other words, what if the crazy fundy Ortho Jew rules said "Wife cannot remarry without a get. Husband is not compelled to give said get"? Then what?
Or for that matter, what if the religion simply states that once married, no-one can ever re-marry, period?
In my brother's wacky church, he is allowed to remarry but his ex-wife isn't because she initiated the divorce. He warned her about this before she moved forward with it, and she said she had already thought it through and was fine with the consequences. So basically she was saying she would rather be alone for the rest of her life than stay married to him :pinch:
Quote from: derspiess on October 10, 2013, 03:26:05 PMIn my brother's wacky church, he is allowed to remarry but his ex-wife isn't because she initiated the divorce. He warned her about this before she moved forward with it, and she said she had already thought it through and was fine with the consequences. So basically she was saying she would rather be alone for the rest of her life than stay married to him :pinch:
That or, "... and I'm ready to get a new church should the need arise."
Quote from: merithyn on October 10, 2013, 03:14:27 PM
Quote from: DGuller on October 10, 2013, 01:39:01 PM
Quote from: Malthus on October 10, 2013, 01:37:44 PM
Quote from: Admiral Yi on October 10, 2013, 01:28:34 PM
I don't think it should be the responsibility of the justice system to fix a given religion's inconsistencies.
It isn't doing that.
It is threatening punishment for failure to remove a religious bar to remarriage. In the specific case of Judaism, the religion itself is not "inconsistent" - the man is obligated to do just that - provide the 'get'.
Still, the point is that it's a religious matter. If religious authorities lack the means to enforce a religious environment, then it's their problem to solve, not secular legal system's.
I think these are the arguments that were given that you seem to have disregarded, Malthus. :)
Marriage itself is, in many cases, a "religious matter" that is "enforced by the secular legal system". You get married in a Church ceremony, it has "secular legal system" implications - the secular authorities will give that act a legal meaning, indeed "enforce" it, even though it took place in a "religious environment".
So I'm not seeing why this is an issue. Or if it is, isn't having church weddings just as much of an issue? Yet every state allows them.
Quote from: Malthus on October 10, 2013, 02:55:38 PM
Quote from: DGuller on October 10, 2013, 02:48:24 PM
Quote from: Malthus on October 10, 2013, 02:39:40 PM
... 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"? :huh: 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?
That sounds like hostility, doesn't it?
And we don't like hostility, do we, Errol?
No, we don't, John.
You missed Meri's point Malthus, which was that your claim that DG's position boiled down to "i don't like it" was unwarranted.
Quote from: Malthus on October 10, 2013, 03:32:33 PM
Quote from: merithyn on October 10, 2013, 03:14:27 PM
Quote from: DGuller on October 10, 2013, 01:39:01 PM
Quote from: Malthus on October 10, 2013, 01:37:44 PM
Quote from: Admiral Yi on October 10, 2013, 01:28:34 PM
I don't think it should be the responsibility of the justice system to fix a given religion's inconsistencies.
It isn't doing that.
It is threatening punishment for failure to remove a religious bar to remarriage. In the specific case of Judaism, the religion itself is not "inconsistent" - the man is obligated to do just that - provide the 'get'.
Still, the point is that it's a religious matter. If religious authorities lack the means to enforce a religious environment, then it's their problem to solve, not secular legal system's.
I think these are the arguments that were given that you seem to have disregarded, Malthus. :)
Marriage itself is, in many cases, a "religious matter" that is "enforced by the secular legal system". You get married in a Church ceremony, it has "secular legal system" implications - the secular authorities will give that act a legal meaning, indeed "enforce" it, even though it took place in a "religious environment".
So I'm not seeing why this is an issue. Or if it is, isn't having church weddings just as much of an issue? Yet every state allows them.
Except that I thought the part that makes it legal is the officiant (in the above cases the religious one) solemnizing the marriage license. Is the marriage still legal without that paperwork?
Doesn't strike me in anyway similar to penalizing someone in legal proceedings because they won't grant a religious divorce to their former spouse.
Quote from: OttoVonBismarck on October 10, 2013, 03:25:44 PM
This is talking about New Jersey for one, so that does not invalidate my analysis of New York State's law. I would need to actually read the cases in question and ascertain the circumstances therein, in both Mississippi and New Jersey, to begin to understand whether or not I should concede this point to you. However, due to my above mentioned hitting of the "give a fuck" limit, I'll skip with that and just assume you're right in how you're reporting the state of the law.
That actually doesn't change my objection, though, specifically wrt Canadian law. It seems that to me U.S. courts occasionally order weird things in civil trials, we've all heard of the strange court orders that pass constitutional muster. So if this is something we do then so be it, and I'm even okay with someone being jailed on civil contempt--a court order is a court order, if it's valid and you willfully disobey it civil contempt is the appropriate remedy.
But it seems like to me in America the position is "we can give you a court order to do this stuff, and if you don't, you're in civil contempt." Okay, I'm not supportive of that, but the process at least passes the smell test. In Canada it seemed like you were saying, "if you don't give the get, we treat the man badly in future proceedings." That would seem to offend justice to me, instead of the court ordering the guy to do something and then punishing him with fines or civil contempt imprisonment for disobeying it you're saying Canadian courts ding him on unrelated issues like child custody and disposition of assets. In the United States those sort of things, handled in a family court, are primarily supposed to be informed by issues relating to the well being of the children and the various laws that govern equitable division of marital assets. It seems perverse to me (if what you suggested is true) if all that goes out the window in Canada if someone refuses to do something. Even civil contempt individuals here still maintain equality under the law in their other court hearings.
The situation in Canada is simply a specific case of the "clean hands" doctrine, codified. I posted the law upthread.
What happens under the Ontario statute (it varies by province, just as yours varies by state) is that, in relation to certain specified matters having to do with spousal support and division of assets (
not custody), your claims or defences
may be struck out if you don't give a "get".
This is far, far less onerous and intrusive than holding someone in contempt. You can go to jail for contempt.
Are you seriously claiming that having your claims or defences struck out for a very limited class of claims is more "perverse" than being jailed for contempt for the same thing? :hmm:
Quote from: Admiral Yi on October 10, 2013, 03:36:04 PM
You missed Meri's point Malthus, which was that your claim that DG's position boiled down to "i don't like it" was unwarranted.
I already conceded that point.
You don't have to be in a nutty religion. If you are and don't like it then leave. I'd say if you can't take the heat get out of the oven (cause that's usually how I phrase it) but it would have been highly offensive in this particular case.
Quote from: Admiral Yi on October 10, 2013, 03:00:11 PM
:mellow:
Very grumbleresque declaration of victory.
Nice drive-by attack on someone who hasn't even posted in the thread! :lol:
Well, now you have.
Quote from: The Brain on October 10, 2013, 03:41:35 PM
You don't have to be in a nutty religion. If you are and don't like it then leave. I'd say if you can't take the heat get out of the oven (cause that's usually how I phrase it) but it would have been highly offensive in this particular case.
:lol: :ph34r:
Quote from: grumbler on October 10, 2013, 03:42:35 PM
Quote from: Admiral Yi on October 10, 2013, 03:00:11 PM
:mellow:
Very grumbleresque declaration of victory.
Nice drive-by attack on someone who hasn't even posted in the thread! :lol:
There are a few Azerbaijans.. ians.. whatever, on this board.
Quote from: grumbler on October 10, 2013, 03:42:35 PM
Nice drive-by attack on someone who hasn't even posted in the thread! :lol:
Thanks. :)
Quote from: Malthus on October 10, 2013, 03:32:33 PM
Marriage itself is, in many cases, a "religious matter" that is "enforced by the secular legal system". You get married in a Church ceremony, it has "secular legal system" implications - the secular authorities will give that act a legal meaning, indeed "enforce" it, even though it took place in a "religious environment".
So I'm not seeing why this is an issue. Or if it is, isn't having church weddings just as much of an issue? Yet every state allows them.
Actually, what every state allows is for a minister to stand in for a judge or justice of the peace to sign the license. That's the only legal aspect of it. No service is actually required, aside from asking, "Do you enter into this union knowingly and willingly?"
There's quite a difference between allowing a minister to stand in to sign a document that says that the couple is doing it willingly, and making a decision about marital assets and child visitation based on a religious edict.
Quote from: Jacob on October 10, 2013, 03:29:44 PM
That or, "... and I'm ready to get a new church should the need arise."
Knowing her, she won't do that. Her particular church is her life, along with her newly-adopted kids and her odd obsession with Little House on the Prairie.
Quote from: Malthus on October 10, 2013, 03:41:15 PM
Quote from: Admiral Yi on October 10, 2013, 03:36:04 PM
You missed Meri's point Malthus, which was that your claim that DG's position boiled down to "i don't like it" was unwarranted.
I already conceded that point.
:hmm:
I must have missed that.
Quote from: merithyn on October 10, 2013, 03:47:06 PM
Quote from: Malthus on October 10, 2013, 03:32:33 PM
Marriage itself is, in many cases, a "religious matter" that is "enforced by the secular legal system". You get married in a Church ceremony, it has "secular legal system" implications - the secular authorities will give that act a legal meaning, indeed "enforce" it, even though it took place in a "religious environment".
So I'm not seeing why this is an issue. Or if it is, isn't having church weddings just as much of an issue? Yet every state allows them.
Actually, what every state allows is for a minister to stand in for a judge or justice of the peace to sign the license. That's the only legal aspect of it. No service is actually required, aside from asking, "Do you enter into this union knowingly and willingly?"
There's quite a difference between allowing a minister to stand in to sign a document that says that the couple is doing it unwillingly, and making a decision about marital assets and child visitation based on a religious edict.
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.
Quote from: Admiral Yi on October 10, 2013, 03:49:10 PM
Quote from: Malthus on October 10, 2013, 03:41:15 PM
I already conceded that point.
Really?
Quote... you haven't articulated any rules or principles other than those demonstrated to be irrelevant.
:)
Good lord.
Quote from: Malthus on October 10, 2013, 03:55:59 PM
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.
Quote from: merithyn on October 10, 2013, 04:00:22 PM
Quote from: Malthus on October 10, 2013, 03:55:59 PM
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:
Quoteclean 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.
I don't see how refusing to do something you're not actually obligated to do would indicate a lack of clean hands.
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?
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?
Quote from: derspiess on October 10, 2013, 04:09:27 PM
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.
Quote from: OttoVonBismarck on October 10, 2013, 04:12:18 PM
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.
Quote from: Malthus on October 10, 2013, 04:19:05 PM
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?
Quote from: derspiess on October 10, 2013, 04:44:38 PM
Quote from: Malthus on October 10, 2013, 04:19:05 PM
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.
Quote from: Malthus on October 10, 2013, 04:49:47 PM
Quote from: derspiess on October 10, 2013, 04:44:38 PM
Quote from: Malthus on October 10, 2013, 04:19:05 PM
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? :unsure:
Quote from: garbon on October 10, 2013, 05:08:33 PM
Quote from: Malthus on October 10, 2013, 04:49:47 PM
Quote from: derspiess on October 10, 2013, 04:44:38 PM
Quote from: Malthus on October 10, 2013, 04:19:05 PM
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? :unsure:
Because intentonally causing someone harm for no good reason is bad? :unsure:
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.
Quote from: Malthus on October 10, 2013, 02:55:38 PM
Quote from: DGuller on October 10, 2013, 02:48:24 PM
Quote from: Malthus on October 10, 2013, 02:39:40 PM
... 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"? :huh: 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?
QuoteMalthus, 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. :console: 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.
Quote from: jimmy olsen on October 10, 2013, 05:33:11 PM
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". :huh:
"Hostile" implies some sort of anger and aggression, doesn't it?
Quote from: Malthus on October 10, 2013, 05:39:58 PMClaiming someone hasn't articulated a point may well be incorrect, but it isn't by any reasonable definition"hostile". :huh:
"Hostile" implies some sort of anger and aggression, doesn't it?
I'm a bit puzzled by this as well.
Quote from: Jacob on October 10, 2013, 06:14:49 PM
Quote from: Malthus on October 10, 2013, 05:39:58 PMClaiming someone hasn't articulated a point may well be incorrect, but it isn't by any reasonable definition"hostile". :huh:
"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.
Agree that hostile doesn't really work. More like patronizing, dismissive, dishonest.
Quote from: Admiral Yi on October 10, 2013, 06:21:26 PM
Agree that hostile doesn't really work. More like patronizing, dismissive, dishonest.
:o
Quote from: Admiral Yi on October 10, 2013, 06:21:26 PM
Agree that hostile doesn't really work. More like patronizing, dismissive, dishonest.
Obviously, I don't agree with that characterization either. Where's your sense of proportion?
How about "mildly frustrated at inability of opponent to concede any point, even after having taken the trouble to repeat again and again actual evidence that was apparently not being read".
Shit, this in a thread where OvB was blatantly trolling the Canucks and where DG himself was making Jew cracks, with nary a peep out of you. Did I storm off in a huff about any of that? :hmm:
Fuck you.
How about
"you cracked under the pressure of fending off multiple posts simultaneously, and would like to de-escalate but have compounded the error by refusing to acknowledge it for so long and are now unable to do so?"
I liked my tack better. It was mainly to post something in the thread but I think it conveyed the mindless idiotic attacks that are the bread and butter of this board.
Quote from: Admiral Yi on October 10, 2013, 06:30:20 PM
How about
"you cracked under the pressure of fending off multiple posts simultaneously, and would like to de-escalate but have compounded the error by refusing to acknowledge it for so long and are now unable to do so?"
Nope. Try again.
You are making a mountain out of a molehill, just as DG has.
Quote from: Admiral Yi on October 10, 2013, 06:30:20 PM
How about
"you cracked under the pressure of fending off multiple posts simultaneously, and would like to de-escalate but have compounded the error by refusing to acknowledge it for so long and are now unable to do so?"
You're completely off your rocker.
Quote from: Admiral Yi on October 10, 2013, 06:21:26 PM
Agree that hostile doesn't really work. More like patronizing, dismissive, dishonest.
:hmm: That does work better. I withdraw my accusation of hostility.
If the guy has a religious obligation to grant the "get", seems it should be the synagogue stepping in, not the courts. Just declare his marriage gotten and have done with it.
Quote from: Peter Wiggin on October 16, 2013, 05:36:24 AM
If the guy has a religious obligation to grant the "get", seems it should be the synagogue stepping in, not the courts. Just declare his marriage gotten and have done with it.
The reason that this is a better answer is that it allows someone qualified to determine whether someone has a religious obligation. I'd argue that the court is absolutely not in the position of telling the husband what his religious obligations are, and while Malthus can argue that the obligation exists and that the guy is an asshole for not meeting the obligation, that begs the question of whether the obligation exists (given that the husband clearly doesn't believe that it does, as he isn't granting the get).
Let some religious authority decide religious dogma.
Under the Ontario law, the court is complelely indifferent as to whether a religious obligation to provide a get exists or not. The legislation simply provides that, if a religious barrier to remarriage exists, and this barrier is under the control of a party (that is, the party can remove it or not at his or her discretion), the party must remove it in order to have a claim or defence heard by the court (in certain specified matters).
This is true whether there exists an obligation to remove it under that religion or not. The legislation - and the court - does not care. It is not telling the man (or anyone) what his or her religious obligations are. His or her civil obligations, in order to register a calim or defence on certain matters befor a divorce court, are to remove religious barriers to remarriage of the other party.
Quote from: Malthus on October 16, 2013, 11:01:45 AM
Under the Ontario law, the court is complelely indifferent as to whether a religious obligation to provide a get exists or not. The legislation simply provides that, if a religious barrier to remarriage exists, and this barrier is under the control of a party (that is, the party can remove it or not at his or her discretion), the party must remove it in order to have a claim or defence heard by the court (in certain specified matters).
This is true whether there exists an obligation to remove it under that religion or not. The legislation - and the court - does not care. It is not telling the man (or anyone) what his or her religious obligations are. His or her civil obligations, in order to register a calim or defence on certain matters befor a divorce court, are to remove religious barriers to remarriage of the other party.
All of this begs the question as to the husband's current beliefs in such things as a
get, and his beliefs in his ability to issue one. I don't see that it is any of the court's business.
If there exists a religious bar to remarriage, then the religion's authorities should resolve it, not the courts.
I think the religious form was created when the social norms were different. Social and physical intimidation were acceptable methods of enforcing religious obligations. Now intimidation of that sort could potentially be criminal, leaving the religion without the normal methods of enforcing its beliefs. That means either the religion has to change itself (have a Rabbi wave his hands and create the get) or the society has to provide the intimidation (court of law threatens monetary punishment). Orthodox Judaism really, really, really doesn't like to change, and so it would much prefer to have an external force do its intimidation.
Quote from: grumbler on October 16, 2013, 11:15:08 AMAll of this begs the question as to the husband's current beliefs in such things as a get, and his beliefs in his ability to issue one. I don't see that it is any of the court's business.
I don't think so. If he's in a position to grant one is fact. I can't see how his beliefs are relevant.
Quote from: Sheilbh on October 16, 2013, 11:36:38 AM
Quote from: grumbler on October 16, 2013, 11:15:08 AMAll of this begs the question as to the husband's current beliefs in such things as a get, and his beliefs in his ability to issue one. I don't see that it is any of the court's business.
I don't think so. If he's in a position to grant one is fact. I can't see how his beliefs are relevant.
I don't know that this is true, so it isn't a "fact,' it is an assertion. I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one. All of those are based on some religious assertions, not on any factual basis.
maybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had. I don't know this, and neither do you. And, even more pertinently, neither does the court. It isn't within their jurisdiction.
Quote from: grumbler on October 16, 2013, 11:57:43 AM
Quote from: Sheilbh on October 16, 2013, 11:36:38 AM
Quote from: grumbler on October 16, 2013, 11:15:08 AMAll of this begs the question as to the husband's current beliefs in such things as a get, and his beliefs in his ability to issue one. I don't see that it is any of the court's business.
I don't think so. If he's in a position to grant one is fact. I can't see how his beliefs are relevant.
I don't know that this is true, so it isn't a "fact,' it is an assertion. I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one. All of those are based on some religious assertions, not on any factual basis.
maybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had. I don't know this, and neither do you. And, even more pertinently, neither does the court. It isn't within their jurisdiction.
If he can't, in fact, grant the "get", then the Ontario legislation would not be triggered, and the Court process could not be invoked.
The trigger is:
Quote(a) the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith;
[Emphasis added]
If, as a matter of fact (and not mere assertion) the religious barrier wasn't "within his or her control", the mechanism in the legislation could not be invoked.
Quote from: frunk on October 16, 2013, 11:16:52 AM
I think the religious form was created when the social norms were different. Social and physical intimidation were acceptable methods of enforcing religious obligations. Now intimidation of that sort could potentially be criminal, leaving the religion without the normal methods of enforcing its beliefs. That means either the religion has to change itself (have a Rabbi wave his hands and create the get) or the society has to provide the intimidation (court of law threatens monetary punishment). Orthodox Judaism really, really, really doesn't like to change, and so it would much prefer to have an external force do its intimidation.
That's my read of the situation as well.
Quote from: grumbler on October 16, 2013, 11:15:08 AM
Quote from: Malthus on October 16, 2013, 11:01:45 AM
Under the Ontario law, the court is complelely indifferent as to whether a religious obligation to provide a get exists or not. The legislation simply provides that, if a religious barrier to remarriage exists, and this barrier is under the control of a party (that is, the party can remove it or not at his or her discretion), the party must remove it in order to have a claim or defence heard by the court (in certain specified matters).
This is true whether there exists an obligation to remove it under that religion or not. The legislation - and the court - does not care. It is not telling the man (or anyone) what his or her religious obligations are. His or her civil obligations, in order to register a calim or defence on certain matters befor a divorce court, are to remove religious barriers to remarriage of the other party.
All of this begs the question as to the husband's current beliefs in such things as a get, and his beliefs in his ability to issue one. I don't see that it is any of the court's business.
If there exists a religious bar to remarriage, then the religion's authorities should resolve it, not the courts.
The legislation requires the individual to swear under oath that they have removed all religious barriers to remarriage under their control. I don't see how that "begs the question". If in fact no such barriers exist, the individual can easily make the required declaration.
Quote from: grumbler on October 16, 2013, 11:57:43 AM
I don't know that this is true, so it isn't a "fact,' it is an assertion. I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one. All of those are based on some religious assertions, not on any factual basis.
But your knowledge doesn't matter. It can be judged on evidence. Is there something stopping a spouse from remarrying within their faith that is within the power of the other spouse to remove? If there is then it should be removed so you have a sort of unfettered divorce, or the court should be able to adjust any settlement to reflect it.
So it would matter here but not, say, for a Catholic because that's a different issue.
Quotemaybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had. I don't know this, and neither do you. And, even more pertinently, neither does the court. It isn't within their jurisdiction.
The religious obligation bit doesn't matter either - that's an interesting sidenote on Orthodox Jewish practice. What matters is that his wife can't remarry within her faith because of something he won't do.
Quote from: Sheilbh on October 16, 2013, 12:21:53 PM
Quote from: grumbler on October 16, 2013, 11:57:43 AM
I don't know that this is true, so it isn't a "fact,' it is an assertion. I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one. All of those are based on some religious assertions, not on any factual basis.
But your knowledge doesn't matter. It can be judged on evidence. Is there something stopping a spouse from remarrying within their faith that is within the power of the other spouse to remove? If there is then it should be removed so you have a sort of unfettered divorce, or the court should be able to adjust any settlement to reflect it.
So it would matter here but not, say, for a Catholic because that's a different issue.
Quotemaybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had. I don't know this, and neither do you. And, even more pertinently, neither does the court. It isn't within their jurisdiction.
The religious obligation bit doesn't matter either - that's an interesting sidenote on Orthodox Jewish practice. What matters is that his wife can't remarry within her faith because of something he won't do.
But it does require the courts to have a working knowledge of the various faiths - as how else would they determine whether or not it was truly stopping something? Even if they are deciding via testimony, aren't they then deciding what is and isn't an obligation in a faith?
Quote from: Sheilbh on October 16, 2013, 12:21:53 PM
Quote from: grumbler on October 16, 2013, 11:57:43 AM
I don't know that this is true, so it isn't a "fact,' it is an assertion. I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one. All of those are based on some religious assertions, not on any factual basis.
But your knowledge doesn't matter. It can be judged on evidence. Is there something stopping a spouse from remarrying within their faith that is within the power of the other spouse to remove? If there is then it should be removed so you have a sort of unfettered divorce, or the court should be able to adjust any settlement to reflect it.
So it would matter here but not, say, for a Catholic because that's a different issue.
Quotemaybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had. I don't know this, and neither do you. And, even more pertinently, neither does the court. It isn't within their jurisdiction.
The religious obligation bit doesn't matter either - that's an interesting sidenote on Orthodox Jewish practice. What matters is that his wife can't remarry within her faith because of something he won't do.
I agree with this as well.
I guess the way I see it is that the religious obligation bit only matters in determining whether the legislation is offensive the the guy's freedom of religion. If not giving the "get" was a religious obligation (or even, to an extent, if giving the "get"
wasn't a religious obligation), the guy could have a potential argument that the legislation, as a whole, impairs his freedom of religion.
As it is, on the assumption that the actual religious obligation is in fact to give the "get", that argument loses force - you won't get many religious Jews protesting against the law as impairing their freedoms.
Quote from: Malthus on October 16, 2013, 12:11:17 PM
If he can't, in fact, grant the "get", then the Ontario legislation would not be triggered, and the Court process could not be invoked.
And, since whether or not a get even exists is a religious question, only the man can say whether or not he can, in fact, grant one.
QuoteThe trigger is:
Quote(a) the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith;
[Emphasis added]
If, as a matter of fact (and not mere assertion) the religious barrier wasn't "within his or her control", the mechanism in the legislation could not be invoked.
If, as a matter of fact, the man states that it is his religious belief the it isn't in his control, then the legislation could not be invoked. That's why it is bad legislation; it depends upon interpretation of religious belief.
Quote from: garbon on October 16, 2013, 12:44:12 PM
Quote from: Sheilbh on October 16, 2013, 12:21:53 PM
Quote from: grumbler on October 16, 2013, 11:57:43 AM
I don't know that this is true, so it isn't a "fact,' it is an assertion. I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one. All of those are based on some religious assertions, not on any factual basis.
But your knowledge doesn't matter. It can be judged on evidence. Is there something stopping a spouse from remarrying within their faith that is within the power of the other spouse to remove? If there is then it should be removed so you have a sort of unfettered divorce, or the court should be able to adjust any settlement to reflect it.
So it would matter here but not, say, for a Catholic because that's a different issue.
Quotemaybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had. I don't know this, and neither do you. And, even more pertinently, neither does the court. It isn't within their jurisdiction.
The religious obligation bit doesn't matter either - that's an interesting sidenote on Orthodox Jewish practice. What matters is that his wife can't remarry within her faith because of something he won't do.
But it does require the courts to have a working knowledge of the various faiths - as how else would they determine whether or not it was truly stopping something? Even if they are deciding via testimony, aren't they then deciding what is and isn't an obligation in a faith?
Courts routinely decide matters that are not within the "working knowledge" of a judge based on the evidence put before them by the parties. That is what evidence is for. In fact the circumstances in which a judge is allowed to make a decision based on their "working knowledge" is exremely limited. We call it taking Judicial Notice and the matter has to be notoriously obvious before a judge can do so.
Quote from: Malthus on October 16, 2013, 12:18:35 PM
The legislation requires the individual to swear under oath that they have removed all religious barriers to remarriage under their control. I don't see how that "begs the question". If in fact no such barriers exist, the individual can easily make the required declaration.
Unless there is a religious bar to taking oaths! :lol:
Quote from: crazy canuck on October 16, 2013, 12:48:16 PM
Quote from: garbon on October 16, 2013, 12:44:12 PM
Quote from: Sheilbh on October 16, 2013, 12:21:53 PM
Quote from: grumbler on October 16, 2013, 11:57:43 AM
I don't know that this is true, so it isn't a "fact,' it is an assertion. I don't know whether I could grant the woman a get, whether she actually needs one to remarry, or whether she can give herself one. All of those are based on some religious assertions, not on any factual basis.
But your knowledge doesn't matter. It can be judged on evidence. Is there something stopping a spouse from remarrying within their faith that is within the power of the other spouse to remove? If there is then it should be removed so you have a sort of unfettered divorce, or the court should be able to adjust any settlement to reflect it.
So it would matter here but not, say, for a Catholic because that's a different issue.
Quotemaybe the guy has a new religious obligation that prevents him performing any religious obligations he previously had. I don't know this, and neither do you. And, even more pertinently, neither does the court. It isn't within their jurisdiction.
The religious obligation bit doesn't matter either - that's an interesting sidenote on Orthodox Jewish practice. What matters is that his wife can't remarry within her faith because of something he won't do.
But it does require the courts to have a working knowledge of the various faiths - as how else would they determine whether or not it was truly stopping something? Even if they are deciding via testimony, aren't they then deciding what is and isn't an obligation in a faith?
Courts routinely decide matters that are not within the "working knowledge" of a judge based on the evidence put before them by the parties. That is what evidence is for. In fact the circumstances in which a judge is allowed to make a decision based on their "working knowledge" is exremely limited. We call it taking Judicial Notice and the matter has to be notoriously obvious before a judge can do so.
That makes sense. I guess it just seems odd to me in the context of religion as it seems like the court is then helping codify what is a requirement in that religion.
Quote from: grumbler on October 16, 2013, 12:49:21 PM
Quote from: Malthus on October 16, 2013, 12:18:35 PM
The legislation requires the individual to swear under oath that they have removed all religious barriers to remarriage under their control. I don't see how that "begs the question". If in fact no such barriers exist, the individual can easily make the required declaration.
Unless there is a religious bar to taking oaths! :lol:
In that case they can affirm. :smarty:
Quote from: garbon on October 16, 2013, 12:44:12 PM
But it does require the courts to have a working knowledge of the various faiths - as how else would they determine whether or not it was truly stopping something? Even if they are deciding via testimony, aren't they then deciding what is and isn't an obligation in a faith?
Not really. The mechanism only gets invoked where someone complains that the other party hasn't removed a barrier to remarriage. Then, the party that is subject to the complaint must swear that they have.
The Court only gets inolved if the parties disagree on these basic facts - in which case they decide the matter just as they would any other matter of disputed evidence before them: on the civil standard of preponderance of evidence.
The Court doesn't need any knowledge of religion, just as it doesn't need any knowledge of medicine to determine a medical malpractice case. Evidence is up to the parties to produce.
Quote from: crazy canuck on October 16, 2013, 12:50:03 PM
Quote from: grumbler on October 16, 2013, 12:49:21 PM
Quote from: Malthus on October 16, 2013, 12:18:35 PM
The legislation requires the individual to swear under oath that they have removed all religious barriers to remarriage under their control. I don't see how that "begs the question". If in fact no such barriers exist, the individual can easily make the required declaration.
Unless there is a religious bar to taking oaths! :lol:
In that case they can affirm. :smarty:
Ya beat me to it! :lol:
Quote from: garbon on October 16, 2013, 12:49:40 PM
That makes sense. I guess it just seems odd to me in the context of religion as it seems like the court is then helping codify what is a requirement in that religion.
It is not common but Courts do make judgments regarding religious beliefs in a number of contexts. For example in the recent cases regarding the ability of a witness to wear a veil while giving testimony.
Quote from: crazy canuck on October 16, 2013, 12:52:01 PM
Quote from: garbon on October 16, 2013, 12:49:40 PM
That makes sense. I guess it just seems odd to me in the context of religion as it seems like the court is then helping codify what is a requirement in that religion.
It is not common but Courts do make judgments regarding religious beliefs in a number of contexts. For example in the recent cases regarding the ability of a witness to wear a veil while giving testimony.
Yup. Or any number of other issues involving "reasonable accomodation" of religious beliefs.
Quote from: Malthus on October 16, 2013, 12:56:17 PM
Quote from: crazy canuck on October 16, 2013, 12:52:01 PM
Quote from: garbon on October 16, 2013, 12:49:40 PM
That makes sense. I guess it just seems odd to me in the context of religion as it seems like the court is then helping codify what is a requirement in that religion.
It is not common but Courts do make judgments regarding religious beliefs in a number of contexts. For example in the recent cases regarding the ability of a witness to wear a veil while giving testimony.
Yup. Or any number of other issues involving "reasonable accomodation" of religious beliefs.
Agreed.
Quote from: garbon on October 16, 2013, 12:44:12 PM
But it does require the courts to have a working knowledge of the various faiths - as how else would they determine whether or not it was truly stopping something? Even if they are deciding via testimony, aren't they then deciding what is and isn't an obligation in a faith?
The same way courts decide in medical negligence cases or shipping insurance. Evidence will be presented and the court will make a judgement. The areas that even all the lawyers and judges in the world have a working knowledge of are far smaller than the areas they don't.
QuoteI guess the way I see it is that the religious obligation bit only matters in determining whether the legislation is offensive the the guy's freedom of religion. If not giving the "get" was a religious obligation (or even, to an extent, if giving the "get" wasn't a religious obligation), the guy could have a potential argument that the legislation, as a whole, impairs his freedom of religion.
Yeah I agree. In that case I'd agree with the guy.
If necessary courts will look at religious obligation and balance it against other interests - all of the Jehovah's Witnesses cases for example.
Quote from: Sheilbh on October 16, 2013, 12:21:53 PM
But your knowledge doesn't matter. It can be judged on evidence. Is there something stopping a spouse from remarrying within their faith that is within the power of the other spouse to remove?
What is the "evidence" for the ability of a man to remove an obstacle he doesn't think he can remove on religious grounds?
QuoteIf there is then it should be removed so you have a sort of unfettered divorce, or the court should be able to adjust any settlement to reflect it.
It makes more sense for the court to say that the get is simply not required on those grounds. Otherwise, the court is punishing the man for his religious beliefs.
QuoteThe religious obligation bit doesn't matter either - that's an interesting sidenote on Orthodox Jewish practice. What matters is that his wife can't remarry within her faith because of something he won't do.
But that's a religious problem. It shouldn't be the subject of the law and the courts, no matter how interesting it is.
Quote from: crazy canuck on October 16, 2013, 12:50:03 PM
In that case they can affirm. :smarty:
Then the problem is solved, though the woman still can't remarry in her religion. The court didn't need to be involved at all.
Quote from: grumbler on October 16, 2013, 01:01:34 PM
Quote from: crazy canuck on October 16, 2013, 12:50:03 PM
In that case they can affirm. :smarty:
Then the problem is solved, though the woman still can't remarry in her religion. The court didn't need to be involved at all.
I dont know the legislation in question. I just jumped in on the question of taking an oath and the suggestion that courts need specialized knowledge of factual issues before they can hear a case.
Quote from: grumbler on October 16, 2013, 12:59:03 PMWhat is the "evidence" for the ability of a man to remove an obstacle he doesn't think he can remove on religious grounds?
Research and statements. Same as the evidence on any other subject. If he can or can't give a get is an issue of fact. His opinion or belief doesn't matter.
Here he can. In a Catholic divorce neither party can do anything to annul their marriage because only the Church has that power. Whether the power to give a get is with the man or the Beth Din makes a difference, but it's also something you can discover.
QuoteIt makes more sense for the court to say that the get is simply not required on those grounds. Otherwise, the court is punishing the man for his religious beliefs.
What? I'm afraid I don't get this.
QuoteBut that's a religious problem. It shouldn't be the subject of the law and the courts, no matter how interesting it is.
How is it a religious problem?
Quote from: Sheilbh on October 16, 2013, 11:36:38 AMI can't see how his beliefs are relevant.
What? How can you claim that his beliefs are not relevant while at the same time empowering hers?
Here, for the sake of the debate, is the legislation in question in full (from the Family Law Act):
QuoteStatement re removal of barriers to remarriage
(4) A party to an application under section 7 (net family property), 10 (questions of title between spouses), 33 (support), 34 (powers of court) or 37 (variation) may serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that,
(a) the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith; and
(b) the other party has not done so, despite a request. R.S.O. 1990, c. F.3, s. 2 (4).
Idem
(5) Within ten days after service of the statement, or within such longer period as the court allows, the party served with a statement under subsection (4) shall serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith. R.S.O. 1990, c. F.3, s. 2 (5).
Dismissal, etc.
(6) When a party fails to comply with subsection (5),
(a) if the party is an applicant, the proceeding may be dismissed;
(b) if the party is a respondent, the defence may be struck out.
Quote from: grumbler on October 16, 2013, 01:01:34 PM
Quote from: crazy canuck on October 16, 2013, 12:50:03 PM
In that case they can affirm. :smarty:
Then the problem is solved, though the woman still can't remarry in her religion. The court didn't need to be involved at all.
I think you misunderstand. "Affirm" is what people who have religious objections to swearing do, in place of giving an "oath". It has the same effect but does not invoke religion.
Re: the legislation.
Ah, well that is straight forward. Its just a question of evidence.
Quote from: crazy canuck on October 16, 2013, 01:11:36 PM
Re: the legislation.
Ah, well that is straight forward. Its just a question of evidence.
Yup.
Quote from: Iormlund on October 16, 2013, 01:08:29 PMWhat? How can you claim that his beliefs are not relevant while at the same time empowering hers?
I'm not. Whether she can remarry or not and whether he can give a get or not are things that you can find out. There's a yes or no answer.
The fact that they may believe something contrary is irrelevant. She may well firmly believe she doesn't need a get to remarry and she may believe that only a Beth Din can issue a get. But that doesn't matter for the court any more than it would matter if I absolutely believe that my tenancy agreement only requires me to pay half-rent because I'm in a smaller room.
As cc says it's a matter of evidence.
What if the man refuses to give the get on religious grounds? For instance, he believes that it is his religious duty to prevent his ex-wife from remarrying for some reason or other. (I'm sure someone can come up with a legitimate reason for why that could happen.)
What does the court do then? I mean, the courts are essentially forcing the man to do something that he may have a good reason to do.
Quote from: merithyn on October 16, 2013, 01:16:05 PM
What if the man refuses to give the get on religious grounds? For instance, he believes that it is his religious duty to prevent his ex-wife from remarrying for some reason or other. (I'm sure someone can come up with a legitimate reason for why that could happen.)
What does the court do then? I mean, the courts are essentially forcing the man to do something that he may have a good reason to do.
In that case, the man would have available an argument that the legislation impairs his freedom of religion, and the court would have to decide if it does or not (and, if it does, whether that impairment is justified or not). If the court was convinced the legislation impaired his rights and the impairment was unjustified, it would be struck down.
Quote from: Malthus on October 16, 2013, 01:18:54 PM
Quote from: merithyn on October 16, 2013, 01:16:05 PM
What if the man refuses to give the get on religious grounds? For instance, he believes that it is his religious duty to prevent his ex-wife from remarrying for some reason or other. (I'm sure someone can come up with a legitimate reason for why that could happen.)
What does the court do then? I mean, the courts are essentially forcing the man to do something that he may have a good reason to do.
In that case, the man would have available an argument that the legislation impairs his freedom of religion, and the court would have to decide if it does or not (and, if it does, whether that impairment is justified or not). If the court was convinced the legislation impaired his rights and the impairment was unjustified, it would be struck down.
Which is exactly my point. You have the court ruling on which belief is valid. That's not what courts should be doing.
Let the court proceed with a normal civil divorce and religious authorities deal with metaphysical crap.
Look at it from the other way. This law allows the courts to punish a spouse who isn't taking steps within their power to allow the other spouse maximum freedom after the divorce.
Why should there not be consequences for a sort of conditional, fettered divorce? It seems to me almost like an issue of good faith.
From Malthus quote on Clean Hands Doctrine:
QuoteHis/her activities not involved in the legal action can be abominable since it is considered irrelevant.
I can't see how him withholding get can be relevant, since it is clearly not needed for a legal divorce.
Even so, the only way you can tell he is acting in bad faith instead of his own religious interpretation is to have the court make a ruling on theology.
Quote from: Iormlund on October 16, 2013, 01:22:46 PM
Quote from: Malthus on October 16, 2013, 01:18:54 PM
Quote from: merithyn on October 16, 2013, 01:16:05 PM
What if the man refuses to give the get on religious grounds? For instance, he believes that it is his religious duty to prevent his ex-wife from remarrying for some reason or other. (I'm sure someone can come up with a legitimate reason for why that could happen.)
What does the court do then? I mean, the courts are essentially forcing the man to do something that he may have a good reason to do.
In that case, the man would have available an argument that the legislation impairs his freedom of religion, and the court would have to decide if it does or not (and, if it does, whether that impairment is justified or not). If the court was convinced the legislation impaired his rights and the impairment was unjustified, it would be struck down.
Which is exactly my point. You have the court ruling on which belief is valid. That's not what courts should be doing.
Let the court proceed with a normal civil divorce and religious authorities deal with metaphysical crap.
That's what you have every single time someone claims that religious freedom is infringed - a court ruling on whether there is any infringement and whether that infringement is justified.
It is inevitable that civil laws will, in some cases, have an impact on religious freedoms. Happens all the time. That does not mean that we should not have civil laws.
For example: members of the Native American Church believe that taking peyote is a religious sacrament. Yet taking peyote is otherwise illegal. Making peyote an illegal substance impacts on religious freedom. Same with pot and Rastas.
[Not that I agree with drug laws, mind.]
Quote from: Iormlund on October 16, 2013, 01:29:40 PM
From Malthus quote on Clean Hands Doctrine: QuoteHis/her activities not involved in the legal action can be abominable since it is considered irrelevant.
I can't see how him withholding get can be relevant, since it is clearly not needed for a legal divorce.
Even so, the only way you can tell he is acting in bad faith instead of his own religious interpretation is to have the court make a ruling on theology.
Similarly, one needs a ruling on theology when arresting someone for smoking dope or taking peyote.
In these examples you have conflicts between religious laws and civil laws, in which the civil laws naturally prevail. Here we don't have a conflict, the presence of absence of gets has no bearing on any civil matters.
Quote from: Malthus on October 16, 2013, 01:35:27 PM
Quote from: Iormlund on October 16, 2013, 01:29:40 PM
From Malthus quote on Clean Hands Doctrine: QuoteHis/her activities not involved in the legal action can be abominable since it is considered irrelevant.
I can't see how him withholding get can be relevant, since it is clearly not needed for a legal divorce.
Even so, the only way you can tell he is acting in bad faith instead of his own religious interpretation is to have the court make a ruling on theology.
Similarly, one needs a ruling on theology when arresting someone for smoking dope or taking peyote.
Seriously? That's fucked up.
Quote from: DGuller on October 16, 2013, 01:36:30 PM
In these examples you have conflicts between religious laws and civil laws, which the civil laws naturally win. Here we don't have a conflict, the presence of absence of gets has no bearing on all civil matters.
It isn't an automatic conflict/win - members of the Native American Church are, in fact, legally allowed to use peyote under US federal law.
http://en.wikipedia.org/wiki/Native_American_Church
QuoteNotwithstanding 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).
This requires, among other things, a ruling on such theological matters as whether the use was for a "bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion".
Quote from: Iormlund on October 16, 2013, 01:37:15 PM
Seriously? That's fucked up.
How's it fucked up? Surely it's what the courts are for.
What about Sikhs and the kirpan? Or blood transfusions and Jehovah's Witnesses?
QuoteHere we don't have a conflict, the presence of absence of gets has no bearing on any civil matters.
The woman's right to freely remarry as she wishes.
Quote from: Sheilbh on October 16, 2013, 01:42:12 PM
The woman's right to freely remarry as she wishes.
She can do that without getting the get.
Quote from: DGuller on October 16, 2013, 01:36:30 PM
In these examples you have conflicts between religious laws and civil laws, in which the civil laws naturally prevail. Here we don't have a conflict, the presence of absence of gets has no bearing on any civil matters.
The right to remarry without let or hinderance has been judged a legitimate civil purpose. That's what legislators are for, in part - to decide what is, and what is not, a legitimate civil purpose.
Those challeging the legislator's decisions have to: (a) indicate that their choice violates a protected right; and (b) show that the violation is unjustified.
Quote from: Iormlund on October 16, 2013, 01:22:46 PM
Which is exactly my point. You have the court ruling on which belief is valid. That's not what courts should be doing.
I am not sure why you think courts should not be making judgments as to whether legislation is unconstitutional. I think you are missing the step where the legislature has created a law that sets up a pretty easy test on the evidence..
Quote from: Malthus on October 16, 2013, 01:45:07 PM
Quote from: DGuller on October 16, 2013, 01:36:30 PM
In these examples you have conflicts between religious laws and civil laws, in which the civil laws naturally prevail. Here we don't have a conflict, the presence of absence of gets has no bearing on any civil matters.
The right to remarry without let or hinderance has been judged a legitimate civil purpose. That's what legislators are for, in part - to decide what is, and what is not, a legitimate civil purpose.
Those challeging the legislator's decisions have to: (a) indicate that their choice violates a protected right; and (b) show that the violation is unjustified.
I don't think so. I think a person would just have to convince enough legislators that keeping such a law wasn't politically viable.
Besides, we're just discussing why we don't feel it is appropriate. I don't think there are standards on how our reasons have to be formatted. :unsure:
Quote from: Sheilbh on October 16, 2013, 01:42:12 PM
What about Sikhs and the kirpan? Or blood transfusions and Jehovah's Witnesses?
Am I allowed to carry a blade as well? No? Then neither should Sikhs.
Should I be allowed to intentionally deny my kids blood if they needed it? Absolutely not. Neither should JWs.
Religion should make absolutely no difference on how the law works.
Quote from: Iormlund on October 16, 2013, 01:59:58 PM
Am I allowed to carry a blade as well? No? Then neither should Sikhs.
That is the stupidest thing I have read on Languish in a very long time. And given that Marti hasnt been gone for long, that is saying something.
Quote from: Iormlund on October 16, 2013, 01:59:58 PM
Am I allowed to carry a blade as well? No? Then neither should Sikhs.
Are you at least allowed to carry a baseball bat?
Quote from: Sheilbh on October 16, 2013, 01:06:15 PM
Research and statements. Same as the evidence on any other subject. If he can or can't give a get is an issue of fact. His opinion or belief doesn't matter.
Religious beliefs are a matter of fact, not belief? Okay, if that's the fact (or, more properly, you believe that it is :lol:). That kinda ends the discussion right there, though.
I have a different question. Is there a problem if a get is "forced"? I couldn't find anything totally specific but there seems like there may be an issue there.
Here's the best I could find.
http://www.bethdin.org/docs/jbda_vol1.pdf (first paragraph of page 11)
"while being sensitive to the halachot that would render a "forced" get null and void."
Oh and then this:
http://www.jlaw.com/Articles/getart2.html
QuoteThe Get Bill is constitutionally suspect as well. By inviting civil courts to impose financial consequences for the failure of a spouse to remove a religious barrier to remarriage, the law usurps the substantial body of religious law concerning when and under what circumstances a Get is appropriate. This is an encroachment upon religious law, and represents an erosion of our religious rights. For example, the husband may be entirely justified according to halacha in not giving his wife a Get and withholding support if the wife left the household without due cause.12 (This, then, is entirely different than the first Get Bill, which limited its effects to withholding the relief of the courts (i.e., a civil divorce) from a recalcitrant party who is himself or herself requesting it, an area obviously within the province and discretion of the secular courts.) Should a civil court judge be issuing a ruling designed to elicit an uncalled-for Get?
Now obviously that bit mentioned in 2nd blurb is a very different sort of law than that Canadian one, but it made wonder if there is not issue with the courts strong arming men into these gets.
Quote from: garbon on October 16, 2013, 01:59:00 PM
Quote from: Malthus on October 16, 2013, 01:45:07 PM
Quote from: DGuller on October 16, 2013, 01:36:30 PM
In these examples you have conflicts between religious laws and civil laws, in which the civil laws naturally prevail. Here we don't have a conflict, the presence of absence of gets has no bearing on any civil matters.
The right to remarry without let or hinderance has been judged a legitimate civil purpose. That's what legislators are for, in part - to decide what is, and what is not, a legitimate civil purpose.
Those challeging the legislator's decisions have to: (a) indicate that their choice violates a protected right; and (b) show that the violation is unjustified.
I don't think so. I think a person would just have to convince enough legislators that keeping such a law wasn't politically viable.
That's much more difficult for an individual to manage than legally challenging the law. Most people are not really in a position to one-person-lobby for a legal amendment.
QuoteBesides, we're just discussing why we don't feel it is appropriate. I don't think there are standards on how our reasons have to be formatted. :unsure:
Heh, last time I pointed out to DGuller that his position amounted to little more than 'I don't feel this is appropriate' ... :lol:
My point here is that this division into stuff that is a matter for civil society, and what isn't, is a question of politics, and ultimately of opinion; legally, the division is a question of infringing rights. There is no way of objectively judging matters of opinion (other than the ballot-box); we can, however, judge matters of rights.
In short, the only way for this legislation to be
objectively "wrong" is where it is shown that it violates rights. Otherwise, it is perfectly legitimate for society to determine that (say) the "rights" of religious women to freely remarry are something that exist and are worth protecting.
Quote from: Malthus on October 16, 2013, 02:54:45 PM
Quote from: garbon on October 16, 2013, 01:59:00 PM
Quote from: Malthus on October 16, 2013, 01:45:07 PM
Quote from: DGuller on October 16, 2013, 01:36:30 PM
In these examples you have conflicts between religious laws and civil laws, in which the civil laws naturally prevail. Here we don't have a conflict, the presence of absence of gets has no bearing on any civil matters.
The right to remarry without let or hinderance has been judged a legitimate civil purpose. That's what legislators are for, in part - to decide what is, and what is not, a legitimate civil purpose.
Those challeging the legislator's decisions have to: (a) indicate that their choice violates a protected right; and (b) show that the violation is unjustified.
I don't think so. I think a person would just have to convince enough legislators that keeping such a law wasn't politically viable.
That's much more difficult for an individual to manage than legally challenging the law. Most people are not really in a position to one-person-lobby for a legal amendment.
I think most people aren't able to do what you suggested either - in fact, I think that is even more difficult than what I suggested.
Quote from: garbon on October 16, 2013, 02:48:37 PM
I have a different question. Is there a problem if a get is "forced"? I couldn't find anything totally specific but there seems like there may be an issue there.
Here's the best I could find.
http://www.bethdin.org/docs/jbda_vol1.pdf (first paragraph of page 11)
"while being sensitive to the halachot that would render a "forced" get null and void."
Oh and then this:
http://www.jlaw.com/Articles/getart2.html
QuoteThe Get Bill is constitutionally suspect as well. By inviting civil courts to impose financial consequences for the failure of a spouse to remove a religious barrier to remarriage, the law usurps the substantial body of religious law concerning when and under what circumstances a Get is appropriate. This is an encroachment upon religious law, and represents an erosion of our religious rights. For example, the husband may be entirely justified according to halacha in not giving his wife a Get and withholding support if the wife left the household without due cause.12 (This, then, is entirely different than the first Get Bill, which limited its effects to withholding the relief of the courts (i.e., a civil divorce) from a recalcitrant party who is himself or herself requesting it, an area obviously within the province and discretion of the secular courts.) Should a civil court judge be issuing a ruling designed to elicit an uncalled-for Get?
Now obviously that bit mentioned in 2nd blurb is a very different sort of law than that Canadian one, but it made wonder if there is not issue with the courts strong arming men into these gets.
Certainly, if the law violates religious rights, it would be reviewable on that basis. That's why the specifics of the law are important.
Quote from: garbon on October 16, 2013, 02:56:13 PM
I think most people aren't able to do what you suggested either - in fact, I think that is even more difficult than what I suggested.
People raise constitutional arguments in civil cases all the time - there is a substantial body of case law. I've done it myself a few times, for clients.
The limiting factor is legal fees.
Quote from: Malthus on October 16, 2013, 02:54:45 PM
My point here is that this division into stuff that is a matter for civil society, and what isn't, is a question of politics, and ultimately of opinion; legally, the division is a question of infringing rights. There is no way of objectively judging matters of opinion (other than the ballot-box); we can, however, judge matters of rights.
In short, the only way for this legislation to be objectively "wrong" is where it is shown that it violates rights. Otherwise, it is perfectly legitimate for society to determine that (say) the "rights" of religious women to freely remarry are something that exist and are worth protecting.
To me it is a completely irrelevant issue for the courts. Punish those who would force a get and that's it. If secular law allows you to remarry that that's all that should matter to the state. Getting involved in adversely ruling against someone in a civil case because they didn't grant a religious divorce seems like a completely unnecessary affirmation of religious practices - particularly given that no rights are infringed if the court were to not factor into whether a religious dissolution had been granted.
Quote from: Malthus on October 16, 2013, 02:56:55 PM
Quote from: garbon on October 16, 2013, 02:48:37 PM
I have a different question. Is there a problem if a get is "forced"? I couldn't find anything totally specific but there seems like there may be an issue there.
Here's the best I could find.
http://www.bethdin.org/docs/jbda_vol1.pdf (first paragraph of page 11)
"while being sensitive to the halachot that would render a "forced" get null and void."
Oh and then this:
http://www.jlaw.com/Articles/getart2.html
QuoteThe Get Bill is constitutionally suspect as well. By inviting civil courts to impose financial consequences for the failure of a spouse to remove a religious barrier to remarriage, the law usurps the substantial body of religious law concerning when and under what circumstances a Get is appropriate. This is an encroachment upon religious law, and represents an erosion of our religious rights. For example, the husband may be entirely justified according to halacha in not giving his wife a Get and withholding support if the wife left the household without due cause.12 (This, then, is entirely different than the first Get Bill, which limited its effects to withholding the relief of the courts (i.e., a civil divorce) from a recalcitrant party who is himself or herself requesting it, an area obviously within the province and discretion of the secular courts.) Should a civil court judge be issuing a ruling designed to elicit an uncalled-for Get?
Now obviously that bit mentioned in 2nd blurb is a very different sort of law than that Canadian one, but it made wonder if there is not issue with the courts strong arming men into these gets.
Certainly, if the law violates religious rights, it would be reviewable on that basis. That's why the specifics of the law are important.
Quote from: Malthus on October 16, 2013, 02:58:58 PM
Quote from: garbon on October 16, 2013, 02:56:13 PM
I think most people aren't able to do what you suggested either - in fact, I think that is even more difficult than what I suggested.
People raise constitutional arguments in civil cases all the time - there is a substantial body of case law. I've done it myself a few times, for clients.
The limiting factor is legal fees.
I think perhaps we are having very different discussions. I don't think it was ever my intention to build an argument on how to repeal that particular law - but rather just explaining why I feel the law is unwarranted.
Quote from: Malthus on October 16, 2013, 02:54:45 PM
In short, the only way for this legislation to be objectively "wrong" is where it is shown that it violates rights. Otherwise, it is perfectly legitimate for society to determine that (say) the "rights" of religious women to freely remarry are something that exist and are worth protecting.
People have the legal rights to get married and to practice the religion of their choice. However, they don't have the right to force their religion to recognize their marriage. Don't like it? Pick a different religion.
Quote from: grumbler on October 16, 2013, 02:31:24 PM
Quote from: Sheilbh on October 16, 2013, 01:06:15 PM
Research and statements. Same as the evidence on any other subject. If he can or can't give a get is an issue of fact. His opinion or belief doesn't matter.
Religious beliefs are a matter of fact, not belief? Okay, if that's the fact (or, more properly, you believe that it is :lol:). That kinda ends the discussion right there, though.
I wont speak for Sheilbh, but the way I would put it is that the nature of the religious belief is a question of fact which the court must decide based on the evidence put before it.
If a person provides the court with evidence that they believe x and such a belief requires them to act (or not act) in a certain way then that is something the court can consider based on all the other evidence put before the court and it may result in a successful constitutional challenge of legislation which requires the person to act contrary to their religious beliefs.
Quote from: Peter Wiggin on October 16, 2013, 03:06:22 PM
Quote from: Malthus on October 16, 2013, 02:54:45 PM
In short, the only way for this legislation to be objectively "wrong" is where it is shown that it violates rights. Otherwise, it is perfectly legitimate for society to determine that (say) the "rights" of religious women to freely remarry are something that exist and are worth protecting.
People have the legal rights to get married and to practice the religion of their choice. However, they don't have the right to force their religion to recognize their marriage. Don't like it? Pick a different religion.
The legislation is not forcing a religion to recognize a marriage.
Quote from: Malthus on October 16, 2013, 03:46:08 PM
The legislation is not forcing a religion to recognize a marriage.
The legislation is forcing an individual to remove an impediment to a religion's recognition of a marriage.
As things stand the get-less woman could remarry and everyone would consider her married except members of her religion.
One relevant fact that hasn't come up yet: in New York state and Ontario (Canada?) can one party obtain a divorce without the others consent?
Quote from: Admiral Yi on October 16, 2013, 03:50:59 PM
One relevant fact that hasn't come up yet: in New York state and Ontario (Canada?) can one party obtain a divorce without the others consent?
In Canada one party can obtain a divorce without consent. It used to be that the only ground upon which one could do that was infidelity (providing a boon to PIs) but the law was changed in the 70s iirc to allow one party to sue for divorce on a wide range of grounds.
Quote from: Admiral Yi on October 16, 2013, 03:50:59 PM
One relevant fact that hasn't come up yet: in New York state and Ontario (Canada?) can one party obtain a divorce without the others consent?
NYS finally implemented no fault about a year ago.
Quote from: Malthus on October 10, 2013, 02:41:53 PM
Yeah, like the obligation to come to the court with "clean hands" if you want an equitable remedy from them is "blackmail". :hmm:
http://legal-dictionary.thefreedictionary.com/clean+hands+doctrine
Umm, per the definition you provided, it covers the plaintiff, not the defense. If the woman's initiating the divorce proceedings, according to that definition, the man's obstruction of the get is irrelevant.
Quote from: crazy canuck on October 16, 2013, 03:33:57 PM
I wont speak for Sheilbh, but the way I would put it is that the nature of the religious belief is a question of fact which the court must decide based on the evidence put before it.
Not to speak for Sheilbh either, but if the man argues that he cannot, on religious grounds, grant a Get (despite the assertion of others that he must do so under any circumstances), how can the court possibly rule that his religious beliefs are not "facts" but others' religious beliefs
are "facts." What evidence can the court consider regarding such beliefs (or facts, if you are Sheilbh)? This is precisely the reason why the US has a separation of church and state - so that some religious beliefs don't get enshrined as government-approved "facts" and others get dismissed as legally irrelevant.
Quote from: DontSayBanana on October 16, 2013, 10:49:01 PM
Quote from: Malthus on October 10, 2013, 02:41:53 PM
Yeah, like the obligation to come to the court with "clean hands" if you want an equitable remedy from them is "blackmail". :hmm:
http://legal-dictionary.thefreedictionary.com/clean+hands+doctrine
Umm, per the definition you provided, it covers the plaintiff, not the defense. If the woman's initiating the divorce proceedings, according to that definition, the man's obstruction of the get is irrelevant.
The point I was making was that this matter was not "blackmail" any more than the clean hands doctrine was "blackmail".
Quote from: grumbler on October 17, 2013, 06:51:53 AM
Quote from: crazy canuck on October 16, 2013, 03:33:57 PM
I wont speak for Sheilbh, but the way I would put it is that the nature of the religious belief is a question of fact which the court must decide based on the evidence put before it.
Not to speak for Sheilbh either, but if the man argues that he cannot, on religious grounds, grant a Get (despite the assertion of others that he must do so under any circumstances), how can the court possibly rule that his religious beliefs are not "facts" but others' religious beliefs are "facts." What evidence can the court consider regarding such beliefs (or facts, if you are Sheilbh)? This is precisely the reason why the US has a separation of church and state - so that some religious beliefs don't get enshrined as government-approved "facts" and others get dismissed as legally irrelevant.
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.
I'm still unclear as to why a court would want to weight in on a religious matter like this.
Quote from: derspiess on October 17, 2013, 11:14:08 AM
I'm still unclear as to why a court would want to weight in on a religious matter like this.
Go back and read the statute.
Quote from: derspiess on October 17, 2013, 11:14:08 AM
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.
Primarially one assumes for its own sake, but also, as evidenced by the OP, because it creates string incentives to violence and feuding, which is socally harmful. Indeed, in traditional Orthodox Jewish society, which is often insular, violence against those who would wrongully refuse a "get" was in some cases considered an accepted "solution". Clearly, those who commit violence ought to be punished by the criminal law, but prevention is generally preferable to punishment after the fact.
Discouraging those who would impose a religious barrier to remarriage seems to me to serve legitimate social purposes - social purposes which have to be weighed against any harms the legislation employed for that purpose imposes on religious freedoms. As discussed extensively above, the legislation in question doesn't really impair religious freedoms.
Quote from: Malthus on October 17, 2013, 11:35:02 AM
Quote from: derspiess on October 17, 2013, 11:14:08 AM
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.
Which makes the lawmakers completely retarded. I don't give a flying fuck if some woman can't remarry within her faith. Nor does any sane person. This Caesar doesn't want purely religious garbage rendered unto him.
Quote from: The Brain on October 17, 2013, 11:40:16 AM
Quote from: Malthus on October 17, 2013, 11:35:02 AM
Quote from: derspiess on October 17, 2013, 11:14:08 AM
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.
Which makes the lawmakers completely retarded. I don't give a flying fuck if some woman can't remarry within her faith. Nor does any sane person. This Caesar doesn't want purely religious garbage rendered unto him.
Yes, but then I don't imagine much about marriage between
humans concerns you. :P
Quote from: Malthus on October 17, 2013, 11:43:01 AM
Quote from: The Brain on October 17, 2013, 11:40:16 AM
Quote from: Malthus on October 17, 2013, 11:35:02 AM
Quote from: derspiess on October 17, 2013, 11:14:08 AM
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.
Which makes the lawmakers completely retarded. I don't give a flying fuck if some woman can't remarry within her faith. Nor does any sane person. This Caesar doesn't want purely religious garbage rendered unto him.
Yes, but then I don't imagine much about marriage between humans concerns you. :P
I don't feel like marrying a homo. Sue me.
Quote from: Malthus on October 17, 2013, 11:35:02 AM
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 never realized just how American I was until I read through this thread.
Quote from: The Minsky Moment on October 17, 2013, 11:44:25 AM
Quote from: Malthus on October 17, 2013, 11:35:02 AM
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:
Quote1. 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'.
Quote from: The Minsky Moment on October 17, 2013, 11:44:25 AM
Quote from: Malthus on October 17, 2013, 11:35:02 AM
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.
Quote from: crazy canuck on October 17, 2013, 11:06:31 AM
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:
QuoteIt 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.
Quote from: Malthus on October 17, 2013, 11:35:02 AM
Quote from: derspiess on October 17, 2013, 11:14:08 AM
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?
Quote from: Malthus on October 17, 2013, 11:50:29 AM
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.
Quote from: merithyn on October 17, 2013, 11:50:11 AM
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.
Quote from: The Minsky Moment on October 17, 2013, 11:54:49 AM
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.
Quote from: Berkut on October 17, 2013, 11:54:52 AM
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.
Quote from: Berkut on October 17, 2013, 11:54:52 AM
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:
QuoteFirst, 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
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.
Quote from: merithyn on October 17, 2013, 12:22:31 PM
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.
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.
Quote from: Berkut on October 17, 2013, 11:54:52 AM
Quote from: Malthus on October 17, 2013, 11:35:02 AM
Quote from: derspiess on October 17, 2013, 11:14:08 AM
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.
Quote from: The Brain on October 17, 2013, 12:33:45 PM
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. :(
Quote from: The Minsky Moment on October 17, 2013, 11:54:49 AM
Quote from: crazy canuck on October 17, 2013, 11:06:31 AM
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:
QuoteIt 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"? :hmm:
QuoteNotwithstanding 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.
Quote from: merithyn on October 17, 2013, 12:22:31 PM
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.
Quote from: Malthus on October 17, 2013, 12:46:28 PM
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.'
Quote from: merithyn on October 17, 2013, 01:05:39 PM
Quote from: Malthus on October 17, 2013, 12:46:28 PM
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.
Quote from: merithyn on October 17, 2013, 01:05:39 PM
Quote from: Malthus on October 17, 2013, 12:46:28 PM
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?
Quote from: Malthus on October 17, 2013, 12:44:22 PM
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"? :hmm:
QuoteNotwithstanding 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.
QuoteIt 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.
Quote from: viper37 on October 17, 2013, 01:32:01 PM
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.
Quote from: crazy canuck on October 17, 2013, 11:06:31 AM
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.
Quoteyou 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?
Quote from: The Minsky Moment on October 17, 2013, 01:40:15 PM
Quote from: Malthus on October 17, 2013, 12:44:22 PM
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"? :hmm:
QuoteNotwithstanding 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.
QuoteIt 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.
Quote from: crazy canuck on October 17, 2013, 11:06:31 AM
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."
Quote from: grumbler on October 17, 2013, 02:06:19 PM
Quote from: crazy canuck on October 17, 2013, 11:06:31 AM
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.
Quote from: crazy canuck on October 17, 2013, 12:18:24 PM
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:
QuoteFirst, 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.
Quote from: grumbler on October 17, 2013, 02:28:18 PM
Quote from: crazy canuck on October 17, 2013, 12:18:24 PM
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:
QuoteFirst, 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.
Quote from: grumbler on October 17, 2013, 02:06:19 PM
Quote from: crazy canuck on October 17, 2013, 11:06:31 AM
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).
Quote from: Sheilbh on October 17, 2013, 01:46:58 PM
What about a publicly funded faith school? Or do you not have them?
Verboten.
Okay. Even with, say, school vouchers?
Quote from: The Minsky Moment on October 17, 2013, 04:21:43 PM
Quote from: Sheilbh on October 17, 2013, 01:46:58 PM
What about a publicly funded faith school? Or do you not have them?
Verboten.
It has never really occurred to me that our historical differences have produced such significant legal differences.
Quote from: Sheilbh on October 17, 2013, 04:34:08 PM
Okay. Even with, say, school vouchers?
Educational vouchers provided to private persons (parents) may be spent on parochial schools by the parents if certain conditions are satisfied.
Supreme Court split 5-4 on that decision, which was not without considerable controversy.
Quote from: crazy canuck on October 17, 2013, 04:45:48 PM
It has never really occurred to me that our historical differences have produced such significant legal differences.
That's what I've been saying!! :uffda:
Guy should have realized he would get a beating.
http://www.nbcnews.com/news/crime-courts/man-admits-kidnapping-beating-husband-divorce-papers-n98361
QuoteMan Admits Kidnapping, Beating a Husband for Divorce Papers
A New Jersey man pleaded guilty Tuesday to kidnapping and beating an Israeli man who had refused to divorce his wife.
David Wax, 51, a Talmudic scholar from Lakewood, New Jersey, admitted conspiring to kidnap the Jewish man in October 2010 to force him to give his wife a religious divorce, known as a "get," U.S. Attorney Paul J. Fishman said.
According to Jewish law, the get must be presented by a husband to his wife for a divorce to happen.
Prosecutors said Wax lured the man — who was not identified — from Brooklyn, New York, to his home in Lakewood under the pretense that the man would work on Talmudic books Wax was publishing. When he arrived, the victim was brought upstairs, blindfolded, handcuffed, and bound, and then assaulted by Wax and his conspirators until he provided the get.
The family of the man's wife paid Wax about $100,000 to obtain the get. His conspirators received about $50,000, according to court documents.
The U.S. attorney's office did not provide further details on who else faces charges in the case or the status of the victim's marriage.
The conspiracy to commit kidnapping charge carries a maximum potential penalty of life in prison and a $250,000 fine. Sentencing is scheduled for Aug. 19.
Yeah why didn't he think his wife's family would pay 100k to have him kidnapped and beaten?
Quote from: garbon on May 06, 2014, 10:23:57 PM
Yeah why didn't he think his wife's family would pay 100k to have him kidnapped and beaten?
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fi.imgur.com%2FvUYR3NA.png&hash=1b79c307c5e915d78eb2a3fd01a12905230ffc14) (http://imgur.com/vUYR3NA)
:mellow:
:face:
Come on, that pun was great!
:bleeding:
Quote from: jimmy olsen on May 07, 2014, 03:07:52 AM
Come on, that pun was great!
Get out while the getting is good. :P