Faith-Based Initiative Stirs Debate

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On Sept. 11,
Dalton McGuinty – the Premier of Ontario – announced that
his province would
become the first Western jurisdiction to allow Islamic law
to settle family disputes such as divorce, child custody and property

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

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.”

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
than in a secular one. Now, rather than deny that option
to one religion, McGuinty is vowing to eliminate faith-based arbitration

What happened?

arbitration proceeded quietly until Muslims asked to include Shariah
– customs 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
, 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
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 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 would 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

Heather McGregor,
Executive Director of YWCA Toronto, became a leading
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.

23, 2005

McElroy [send her mail]
is the editor of
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

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