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LexView 63.0 - When Should the Courts Enforce Religious Obligations?

From the Archived "LexView" Series

February 15, 2008
  1. When is it appropriate for the Courts to enforce a religious obligation?
  2. Does the enforcement of religious obligations permit the Courts to get involved in religious doctrine?
  3. What impact does this have on the concept of separation of church and state?

Bruker v. Marcovitz
2007 SCC 54
Supreme Court of Canada

Date of Decision: December 14, 2007
Date of Issue: February 15, 2008

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary

Key Terms:

Freedom of conscience and religion; section 2(a) of the Charter of Rights and Freedoms; divorce; religious obligations; moral obligations; civil enforcement; get; Divorce Act

Summary of Facts:

Stephanie Bruker and Jason Marcovitz, both religious Jews, were married in 1969. Ms. Bruker commenced divorce proceedings in 1980, when she was 31 and Mr. Marcovitz was 48. They made an agreement on matters corollary to the divorce, both with the assistance of legal counsel. This "Consent to Corollary Relief" included terms regarding custody of their two children, child support and spousal support. It also stated that they would appear before the rabbinical authorities to obtain a get immediately upon the granting of a Decree Nisi of Divorce.

A get is a Jewish divorce. Only a husband can give one and a wife cannot obtain one without her husband's agreement. In Jewish law, a husband releases his wife from the marriage and authorizes her to remarry with a get. The process takes place before a Beth Din or rabbinical court.

According to Jewish law, when a husband refuses to agree to give a get, the wife is without legal recourse. She remains his wife and unable to have a religious marriage, despite the granting of a civil divorce. Any children she has on civil remarriage would be considered "illegitimate" under Jewish law. Jewish law does not provide a mechanism by which a wife can compel her husband to grant a get.

Mr. Markovitz, despite their written contractual agreement, refused to grant a get to Ms. Bruker for 15 years. He finally did so in December of 1995, by which time he was 63 and she was almost 47. Ms. Bruker sued for breach of their agreement, seeking damages. Mr. Markovitz claimed that the agreement was unenforceable by the civil courts, arguing that he was entitled to be shielded by freedom of religion.

Ms. Bruker did not remarry or have any other children.

At trial, Mass J. enforced the agreement, holding that the object of their agreement was not primarily religious and that Mr. Markovitz had a civil law obligation to appear before the rabbinical authorities. The Quebec Court of Appeal reversed the decision, holding that because the substance of Mr. Markovitz's obligation was religious in nature, it was a moral obligation and unenforceable by the courts.

Significant Issues:

  1. When is it appropriate for the Courts to enforce a religious obligation?
  2. Does the enforcement of religious obligations permit the Courts to get involved in religious doctrine?
  3. What impact does this have on the concept of separation of church and state?

Decision and The Court's Reasons:

The majority Supreme Court of Canada allowed the appeal and restored the damage award granted by the trial judge. Deschamps and Charron JJ., writing in dissent, would have denied the appeal.

The majority first determined that Mr. Markovitz's agreement to give a get was a valid and binding contractual obligation under Quebec law, holding that the religious aspect of the agreement did not make it non-justiciable. The majority relied on the principle that courts will not consider matters that are strictly spiritual or narrowly doctrinal, but may intervene when civil or property rights are in issue.

The majority emphasized that Mr. Markovitz's promise was the result of negotiation between two consenting adults, each represented by legal counsel. They also stressed that Mr. Markovitz's refusal to give a get was "based less on religious conviction than on the fact that he was angry at Ms. Bruker".

The majority next addressed whether the agreement was valid under Quebec law. The civil law of Quebec recognizes three kinds of obligations: moral, civil (or legal) and natural. Moral obligations cannot be enforced by the courts.

The majority categorized the agreement as a civil one and therefore prima facie enforceable under Quebec law. They then considered whether the agreement was contrary to public policy, in which case the courts would still not enforce it.

The majority accepted that there might be agreements with religious aspects that would be against public order; for example, a religiously motivated agreement to resolve a custody dispute that offends a child's best interests. The obligation of Mr. Markovitz to provide a get "harmonizes with Canada's approach to religious freedom, to equality rights, to divorce and remarriage generally", and so the obligation was found not to be against public policy.

The majority also concluded that enforcing the agreement would not conflict with a sincerely held religious belief because Mr. Markovitz's refusal was not based on religious conviction. Even if this were not the case, the majority concluded that granting the get was consistent with public policy in Canada to reduce barriers for women in divorce and remarriage: "The public interest in protecting equality rights, the dignity of Jewish women ... as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests and values that outweigh Mr. Marcovitz's claim that enforcing [the agreement] would interfere with his religious freedom".

The dissenting justices focused on the principle that the courts will remain neutral where religious precepts are in issue. Given that there are no civil law rules with respect to the absence of a get, all consequences flow from religious rules. Deschamps J. wrote that only religious rights were in issue, and the court's non-intervention in such rights makes it possible to avoid situations in which the court is asked to "decide between various religious rules or between rules of secular law and religious rules".

Deschamps J. analogized the contractual promise to attend before the rabbinical authorities to give the get to a promise to go to church. This, she held, is a moral obligation that cannot be enforced by the courts.

LexView Commentary:

The facts in this case compelled the courts to confront the extent to which they will engage in a private dispute concerning religious obligations. At issue was whether the freedom to contract allows the conversion of religious obligations into civil ones.

On the one hand, if the courts become involved in such matters, they may irretrievably engage the state authorities in the doctrines and practices of religious communities. On the other, if the courts refuse to enforce such contracts, there is no mechanism by which individuals can be compelled to abide by their voluntary agreement not to negatively affect the life of another.

Religion plays a powerful role in the lives of people and the state. Religious practices can have a considerable substantive impact on how people live and the decisions they make. In this case, Ms. Bruker was not permitted by her religion to remarry or have more children because her ex-husband broke his contract in which he promised to give her the get.

While the court unnecessarily engaged in a discussion about whether the obligation to provide a get is consistent with public policy, this was not a case of the court or the state determining whether a religious precept or practice was acceptable or generally enforceable. It was primarily a case in which the court considered whether a civil contract was enforceable.

The contract entered into between Ms. Bruker and Mr. Markovitz dealt with a variety of issues, including their respective civil rights under divorce law to child and spousal support. In this context, they agreed to deal with all matters of their marital relationship, including those touched by their religious beliefs and practices. For the courts to enforce a portion of the contract while ignoring the benefits provided by another would create a new and different bargain between the parties. In other words, the courts enforced the get obligation because the parties chose to convert it from simply a moral or religious obligation into a civil one.

That having been said, the analysis undertaken by the majority of the Supreme Court of Canada still left open the door to the courts expressing their opprobrium for certain religious beliefs and practices in the future. This may create troubling consequences in future cases as it may allow courts to refuse to enforce a voluntary civil contract where it disagrees with the religious belief or practice on which the contractual obligation is based.

When is it appropriate for the Courts to enforce a religious obligation?

The majority did not decide to enforce a religious obligation. The contrary is true. The reasons for judgment are clear that, under Jewish law, Mr. Markovitz had no religious obligation to give a get. Clearly, it would be inappropriate for the courts to interfere in a strictly doctrinal dispute within a religious community. Equally, it would be inappropriate for the courts to order compliance with a religious practice for religious reasons. To do so would involve an unwarranted intrusion by the civil authorities into the affairs of a private religious community. It would also undermine the freedom of religion guaranteed by the Charter.

In this case, the courts only agreed to enforce an obligation to do something with religious significance promised by one party in the context of a contract otherwise enforceable by law. In other words, the court only enforced the contractual obligation to give a get because the parties made it the subject of a civil contract. This distinction is central to the reasons of the majority judges.

The court was likely motivated, in part, by the fact that Mr. Markovitz would otherwise be able to retain the benefits he acquired in the contract, while avoiding one of his freely undertaken obligations. There is nothing in the majority's reasons to suggest that, had Mr. Markovitz made the promise to give a get outside of a legally enforceable contract, the court would or could have intervened to assist Ms. Bruker despite the religious consequences of such a refusal.

It is interesting that Ms. Bruker did not seek a mandatory injunction, compelling Mr. Markovitz to give a get. It was factually unnecessary to do so and the court stayed clear of opining on what the result of such an application would be. In other words, the court did not so much enforce a religious obligation as visit Mr. Markovitz with the consequences of failing to abide by the promises he made in the contract he entered into. Significantly, the damage award was not made simply because of Mr. Markovitz's failure to perform a religious act, but because of the impact that his breach of contract had on Ms. Bruker.

This is an appropriate balance. The courts should remain neutral in religious matters and should avoid interference in religious disputes. However, when parties voluntarily mix the civil and the sacred, they should not be able to retain the civil advantages while avoiding their reciprocal religious obligations.

It remains to be seen whether the courts will issue orders to compel religious acts where the failure to perform such acts does not create a significant and civilly recognizable detriment to the other contracting party. The Bruker v. Markovitz decision does not dictate that such an order would be necessarily forthcoming, or that any award would be made in the absence of a real detriment to the other party. In the absence of such a detriment, the argument that a court is interfering in a strictly religious matter would have much more force, as would the objection to the court's involvement.

Does this permit the Courts to get involved in religious doctrine?

One disquieting element of the majority's decision is the analysis of whether Mr. Marcovitz's get obligation was consistent with public policy. Since they clearly found that the ability of a woman to obtain both a civil and religious divorce is consistent with public policy and "values", this issue did not really come into play.

It is a fair balance for the court to refrain from rendering a decision where a contractual promise with religious significance has no substantive impact on other persons or their rights. In other words, a promise to attend temple or church regularly may produce no benefit to another party and therefore may still be unenforceable. To so refrain avoids interference by the courts in religious doctrine and practices and state judgment of the appropriateness or acceptability of such doctrine and practice.

The majority indicates their intention to avoid "judicial sanction of the vagaries of an individual's religion". They then belie this approach by analyzing whether the religious obligation to be enforced is "prohibited by law or . . . contrary to public order". The first caveat makes sense. The courts cannot be called upon to enforce the performance of a religious rite or practice that contravenes the criminal law, for example. This is consistent with the general rule that the court will not enforce an illegal contract or one that is entered into with the object of committing an illegal act. A religious obligation that is illegal cannot likely attract greater protection under the law of contract than any other illegal obligation.

There is also a general rule that the court will not enforce a contract that is contrary to public policy. For example, the courts will not enforce a non-competition clause that precludes a person from earning a living. However, assessing whether a religious belief or practice offends against the court's sense of public order or public policy necessitates judicial sanction of an individual's religion (or at least the withholding of such sanction).

In this decision, the majority found that the obligation to give a get was consistent with public policy. But what if it were not? Presumably that contract would go unenforced, despite the fact that it was freely and voluntarily undertaken and its breach would cause a considerable hardship to the innocent party.

The spectre of "public policy" in enforcing religiously based civil obligations does raise the possibility of the court expressing opprobrium for religious beliefs and practices. This is contrary to the Supreme Court of Canada's clear statement that "the state is in no position to be, nor should it become, the arbiter of religious dogma".

A principled basis upon which a court can determine whether to enforce a religiously based contractual term lies instead in general contract law. The court should determine whether the parties intended to create legal relationships and, in doing so, convert a religious obligation into a civil one. The court should then consider whether the party who breaches the obligations has caused damage to the innocent party. If there is no legally recognizable consequence of the breach, there may be no remedy that can be imposed by the courts. Engaging in a further assessment of the acceptability of the religious practice involved, apart from clear criminality or illegality, jeopardizes a robust religious freedom. It may mean that mainstream religious practices will be enforceable, while minority or peculiar religious practices will receive lesser protection. This is not appropriate in a country that purports to protect all religious belief and practice without discrimination.

Separation of Church and State

This decision happily presents a difficulty for those who believe that a "secular" state must not permit any meaningful interaction between the affairs of the state and the sacred. For many who misunderstand the meaning of "secular", religion and religious belief must be kept entirely out of any public debate or government decision, regardless of the impact such a decision may have on religious communities.

Here, an arm of the state (the court) is involved in and has influence on a religious matter, through the application of contract law. If there is influence and connection one way, there ought to be the possibility of influence and connection in the other way. The issue is not control by one over the other; but a recognition of the reality that the religious and the public sphere (here of public laws) intersect and influence one another within their properly defined jurisdictions. It would have been better, since the term "secular" is ambiguous, for the court to have spoken of religion and the state or religion and the general laws so as to more precisely distinguish between religious practices and the curial review of public law.

Proper respect for religious liberty (not just of individuals but of their communities) requires the court to eschew any involvement in the assessment of the appropriateness of religious doctrine. It also permits the enforcement of contractual provisions of religious significance because doing so honours the religious and civil commitments of Canadians. Failing to enforce such commitments can undermine a person's ability to live a full life in accordance with his or her religious beliefs. That was the cost imposed on Ms. Bruker and the court was right to recognize the religious harm caused by Mr. Marcovitz.


This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar; with further research, writing, and editing from Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.

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