Premier Dalton McGuinty's recent decision to outlaw binding arbitration by religious tribunals in family law disputes is yet another example of the widening gap between the political rhetoric of tolerance and the reality of intolerance. Politicians like to wave the banner of multiculturalism. They like the word so much, they enshrined it in our Constitution. You will also find two references to religious freedom in our Constitution.
Yet those with political and legal power treat multiculturalism as nothing more than an ethnic fair where people can line up to try culinary delights like jerk chicken, moo goo gai pan and kishka. The power brokers of modern society will shut down the fair when multiculturalism demands that a cultural or religious practice be exempted from the ordinary operation of the law.
With the exception of the Native American Church in the U.S. Southwest, whose members have been authorized to use peyote as a sacrament, virtually every claim to religious exemption from ordinary law has failed.
Our courts laugh when Rastafarians defend themselves on drug charges by explaining the sacramental nature of marijuana. The Sikh ceremonial dagger, the kirpan, is still considered a weapon under the Criminal Code, and parents who rely on faith healing invariably face charges of criminal neglect.
Our past treatment of the Mennonite, Hutterite, Doukhobor and Jehovah's Witness communities is a graphic illustration of the fact that tolerance has distinct limits and that accommodation of religious practices may be little more than an abstract ideal making for good political rhetoric.
Just because we now live in a global village where we can eat exotic food and listen to indigenous music doesn't mean we've shown respect for a cultural mosaic. Tolerance can only be tested when another culture's code of ethics comes into conflict with conventional societal values. There is no need for the law to accommodate a return to human sacrifice or some other extreme religious practice, but what is the harm in allowing the religious to operate within their own legal code in the context of family dissolution?
As long as the practice of religion does not harm others, I don't see why true religious adherents shouldn't be permitted to harm themselves on the road to salvation.
Formal legal process is both costly and alienating for most people, and there is a demonstrable need for alternative dispute resolution. In outlawing religious arbitration, the premier was responding to claims that women, especially in the Muslim community, will be coerced into agreeing to resolution by religious leaders and that invariably they will not receive an equitable settlement by the standards of conventional law.
Maybe so. I recognize that most religions are steeped in misogynistic attitudes that undercut our secular approach to the property and custody issues that need to be resolved when a marriage fails.
Knowing that some members of a community will be pressured to keep their disputes hidden within the community imposes an obligation on government to protect these people, but it does not provide a compelling excuse to deprive others who are willing participants of living by the precepts of their religious law. It's a characteristic mistake made by those in power when they lack the will to work hard to accommodate free choice.
Look at how the Supreme Court of Canada responded to the contentious issue of assisted suicide in the early 1990s when confronted with the painful saga of Sue Rodriguez, who suffered from Lou Gehrig's disease and requested assistance to terminate her life. The court denied her request, worried that some terminally ill patients would be manipulated or coerced into ending their lives by sinister doctors of familt members.
Instead of constructing a legal process to ensure there is no abuse or coercion, the court upheld a blanket prohibition, preventing even those with legitimate claims from seeking assistance to end their misery.
The principle of giving people the freedom to choose means nothing if the state believes it can dictate the choice. The only mandate the state has is to ensure that the choices made by ordinary people are voluntary and informed.
Therefore, it makes sense to require religious adherents to demonstrate in a court of law that family arbitration by religious authorities is a free and voluntary enterprise before a decision of the arbitator can be legally binding. Instead, the government has removed choice altogether.
I am not supporting arbitration of domestic issues by religious tribunals because I am a big fan of religion. From my perspective, we have sadly mistaken religion for spirituality, just as we have confused wealth with money, wisdom with education and justice with law.
Despite the confusion, I still believe that we have the right to accumulate wealth, to pursue an education, to seek the protection of the law and to live by a religious code of conduct.
Alan Young is a law professor at Osgoode Hall. His column appears every other week. email@example.com