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Best to
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On September 11th, Dalton
McGuinty -- the Premier of Ontario -
www.foxnews.com/story/0%2C2933%2C169125%2C00.html
announced that his province would not become the
first Western jurisdiction in which Islamic law was
allowed 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 www.e-laws.gov.on.ca/DBLaws/Statutes/English/91a17_e.htm
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
which embodies "unequal or unfair treatment of
parties."
Catholics, Fundamentalist
Christians, Jews, Mennonites, and Jehovah's
Witnesses are among the religious groups who have
established faith-based arbitration as an active
alternative to expensive court
proceedings.
But it is not merely a
matter of expense. An Hassidic Jew, for example,
might have more confidence in the wisdom of a
www.cjc.ca/#
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.
What happened?
Faith-based arbitration
proceeded quietly until Muslims asked to include
www.shariah.net/
Shariah law -- customs and rules based on Islamic
teachings. Gender feminist groups immediately
protested.
In response, former
Ontario Attorney General and Women's Issues
Minister www.attorneygeneral.jus.gov.on.ca/english/news/2004/20040625arbitrationreview-nr.asp
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 www.ndp.ca/
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, www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/
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 Sharia arbitration should be
rejected because Islamic law violated the
laws.justice.gc.ca/en/charter/
Canadian Charter of Rights and Freedoms, which
guarantees equality between the sexes.
Boyd countered that
arbitration was a private act -- as opposed to one
in the governmental or public sphere -- and, 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 law -- for example by imposing
the death penalty for adultery -- then, like any
other illegal contract, it be unenforceable. But in
areas where discretion exists -- for example,
whether a father is awarded child custody --
arbitration 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 www.ywcatoronto.org/get_involved/arbitration_intro.htm
leading voice against Boyd's report. In a
widely-circulated www.ywcatoronto.org/assets/pdf/get_involved/media_archive/2004/040601_tstar_editorial.pdf
Letter-to-the-Editor (Toronto Star June 1, 2004,
.pdf), 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,
www.cbc.ca/story/canada/national/2005/09/04/islamic_arbitration20050904.html
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 www.leafottawa.ca/news/archives/2004/11/media_release_leafs_submissions_to_marion_boyd_in_relation_to_her_review_of_the_arbitration_act/index.phpSubmissi
on 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.
©2010, Wendy
McElroy
* * *
Wendy
McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute
in Oakland, Calif. She is the author and editor of
many books and articles, including her latest book,
Liberty for Women: Freedom and Feminism in the
21st Century. She lives with her husband in
Canada. E-Mail.
Also, see her daily blog at www.zetetics.com/mac
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