L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 338, September 25, 2005
"Listening to the Libertarians Yapping"
Faith Based Initiative Stirs Debate
Special to TLE
On Sept. 11, Dalton McGuintythe Premier of Ontarioannounced that his province would not become the first Western jurisdiction to allow Islamic law to settle family disputes such as divorce, child custody and property settlements.
The announcement raises a question: When is it proper for the government to dictate the rules by which adults of sound mind agree to resolve family disputes?
In the coming months, an uproar will rip through Canadian society and courts. To understand the uproar and how the preceding question is being answered requires background.
The Ontario Arbitration Act (1991) allows family disputes on civil matters from divorce to inheritance to be resolved through an arbitrator rather than a court, as long as both parties agree. The arbitrated resolutions have the same legal force as court decisions. But the court retains power to reject a resolution that is "invalid" or embodies "unequal or unfair treatment of parties."
Catholics, Fundamentalist Christians, Jews, Mennonites, and Jehovah's Witnesses are among the religious groups that have established faith-based arbitration as an active alternative to expensive court proceedings.
But it is not merely a matter of expense. A Hasidic Jew, for example, might have more confidence in the wisdom of a rabbinical judgment than in a secular one. Now, rather than deny that option to one religion, McGuinty is vowing to eliminate faith-based arbitration altogether.
Faith-based arbitration proceeded quietly until Muslims asked to include Shariah lawcustoms and rules based on Islamic teachings. Gender feminist groups immediately protested.
In response, former Ontario Attorney General and Women's Issues Minister Marion Boyd conducted a review of arbitration with a focus on Shariah law to determine its impact "on vulnerable people, including women." (As a member of the New Democratic Party, which leans far to the left, Boyd would be expected to show special sensitivity to the oppression of women.)
Issued in December 2004, the review concluded that Shariah arbitration should be accepted on the condition that various safeguards be imposed. For example, all agreements must be "in writing, signed by the parties and witnessed"; the "best interest of a child" could not be ignored.
Section 5 of Boyd's review, "Constitutional Considerations," addressed the argument that Shariah arbitration should be rejected because Islamic law violated the Canadian Charter of Rights and Freedoms, which guarantees equality between the sexes.
Boyd countered that arbitration was a private actas opposed to one in the governmental or public sphereand, so, it was not subject to Charter scrutiny. Arbitration was private because "there is no state compulsion to arbitrate." Moreover, "it is a reflection of the parties' relationship...because the authority of the arbitrator flows directly from the parties agreement to be bound."
If a Shariah judgment violated Canadian lawfor example, by imposing the death penalty for adulterythen, like any other illegal contract, it be unenforceable. But in areas where discretion existsfor example, whether a father is awarded child custodyarbitration decisions might differ from those of provincial courts.
The public versus private nature of family 'contracts' and their resolution is key to understanding the protest that ensued.
Gender feminist groups rushed to answer the question "when is it proper for the government to dictate the rules of family disputes?" Their answer seemed to be "whenever a woman is involved."
Their reasoning: Since it is possible for women to be brainwashed or pressured into private negotiations, all negotiations must be conducted according to identical governmental procedure and law. It doesn't matter that faith-based arbitration has functioned for 15 years with no complaint of widespread abuse. Because abuse is possible, it must be prevented by eliminating the private realm in which it could occur.
The current hostility toward all things Islamic helped to incite protest, but gender feminists aimed at far more than merely "protecting" Muslim women.
Heather McGregor, Executive Director of YWCA Toronto, became a leading voice against Boyd's report. In a widely-circulated Letter-to-the-Editor (Toronto Star, June 1, 2004), she explained, "We feel strongly that it is not only Islam or Muslim family law that presents this threat. A rise in a fundamentalist version of all major religions is eating away at the status of women...Access to safe and legal abortion is being challenged by a form of fundamentalism that has the ear of the President of the United States."
She objected specifically to "fundamentalist Judaism."
Marilou McPhedran, a lawyer for the Canadian Council of Muslim Women, lambasted Boyd's report for giving "legitimacy and credibility to the right-wing racists who fundamentally are against equal rights for men and women."
Even semi-private arrangements on family matters threaten the laws and policies through which gender feminists promote their vision of equality and social justice. It is not a vision that welcomes competing systems or the choices of dissenting individuals.
The influential LEAF (Women's Legal Education and Action Fund) candidly used the same word to describe "private agreements" that most people use to describe "death and taxes": inevitable. In its argument against Boyd's report, LEAF ruefully stated, "informal dispute resolution between individuals is inevitable, and...it is not possible to monitor the substance of all private agreements or decisions to ensure that they conform to equality principles."
The heavily-regulated faith-based arbitration was hardly an expression of unbridled individual choice. Even so, it expressed more freedom than its feminist critics could tolerate.
How much freedom do I believe should be tolerated? As long as a family dispute is being handled peacefully and involves only consenting adults, then everyone else should mind their own business. In fact even in the presence of children, unless there is reason to suspect clear harm, everyone else should mind their own business.
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