MONTREAL — The implications of a landmark Supreme Court decision in December upholding the awarding of damages to a woman whose husband withheld a get from her for 15 years, despite an agreement between them, are profound and will be felt for years to come, a panel of lawyers and religious authorities agreed at a recent panel discussion at Shaare Zion Congregation.
Moderator Ian Solloway, a family lawyer for more than 30 years, characterized the judgment as “one of the most controversial in recent memory” for its blurring of the boundary between the civil and religious domains.
The lawyers involved in the case of Bruker vs. Marcovitz disagreed on what the fallout will be, and what the decision means for Jewish couples getting married or divorced.
Alan Stein, lead counsel for Stephanie Bruker, said the judgment underlines the wisdom of including a promise to obtain a get upon a civil divorce in pre-nuptial or separation agreements.
But Jason Marcovitz’s lawyer, Anne-France Goldwater, believes the decision will scare men away from signing anything, and that even lawyers will shy away from them for fear of being sued.
She also thinks divorcing couples will have to be careful about other “chicken soup” clauses they put in divorce agreements, such as sending the children to Jewish schools.
Solloway commented afterward that “it is clear this decision will remain a contentious issue for a long, long time, until it is sorted out by the courts… We do not know how this is going to play out in the courts.”
What was not questioned is that the high court has established that a promise of a religious nature is a civil contract, with all the liability that includes.
Solloway said that before including a get clause in marriage contracts, as Bruker and Marcovitz did, the parties should be “very careful, because they are going to be held to account.”
At least one court case has already cited the Supreme Court decision, which was written by Justice Rosalie Abella, Solloway said. In March, Quebec Superior Court Judge Anne-Marie Trahan referred extensively to the judgment in dismissing the arguments of a man who refused to give his wife a get because he wanted to keep intact the family, which includes seven children.
What the Supreme Court decision means where no written agreement to give a get exists is not so obvious, but both Stein and Goldwater think it’s possible that the recalcitrant spouse can be taken to court.
“We just don’t know how far the courts are going to to,” said Solloway, the incoming chair of the English-speaking section of the Montreal Bar Association.
All agreed that the courts will be handling more cases of a religious nature in the future, but they disagreed on whether that is a good thing or not.
The panel discussion, held in co-operation with the Lord Reading Law Society, also included Concordia University religion professor Norma Joseph, founder of the Coalition of Jewish Women for the Get and wife of a modern Orthodox rabbi; McGill University religion professor Daniel Cere; and Rabbi Joseph Prouser of Little Neck, N.Y., a Jewish divorce adjudicator in the Conservative movement.
Both Bruker and Marcovitz were in the audience, as were three Superior Court judges.
Rabbi Prouser feels that the Supreme Court’s sanctioning of Marcovitz did not tread on his religious freedom or Jewish authority.
While the Mishnah says non-Jews cannot coerce a Jewish man to give a get, coercion by Jews, or by non-Jews if they are carrying out the wishes of Jewish authorities, is alright under certain circumstances, and may even be a mitzvah, he said.
“The man may be coerced until he states that he is giving the get of his own free will,” he said. In this case, the Supreme Court did not order the defendant to give a get, but simply upheld an agreement the two parties had voluntarily entered into, he added.
Stein said the effect of the decision is to “level the playing field” for Jewish women in civil divorce settlements. He added that he doesn’t believe the decision opens the door for the courts to interfere in religious disputes. “The courts will intervene on a case-by-case basis, and only then in a manner that is consistent with our laws, public policy and democratic values.”
Goldwater contended that the agunot problem in Canada is exaggerated, and that in about one-third of cases, it is ex-wives who are refusing to accept the get.
“It’s appalling that the Jewish community is so happy with this decision. It should be offensive to Jews because it pillories Judaism, portraying it as a religion that is hostile to women, and propagates the terrible lie that there is inequality in the get process.”
She thinks the courts will be called on to wade ever more deeply and inappropriately into religious waters. “People can go to court now to contest why there are only men on the beth dins, or separate seating in synagogues, or why a woman can’t marry a woman or a Jew a goy.”
Cere is also troubled by the decision. He sees it as making gender equality superior to religious freedom and as breaking with “the respectful distance between religion and the state” that has been a long-held pillar of liberalism.
It also implies that the Jewish religion is in need of correction by civil courts, he said.
Joseph finds no infringement on religious freedom in the decision, and, in fact, the contrary.
“The source of the agunot problem is Jewish law, and its solution can be found only in Jewish law,” she said.
In the meantime, she believes the Supreme Court was right in doing what it can to protect citizens’ rights.
Joseph contended Bruker’s freedom of religion – her right to marriage in her religion – was as much at stake as Marcovitz’s.
Jewish divorce is not egalitarian, she stated. Only the man can initiate the get, and what little remedy exists for agunot, such as coercion, is rarely used. As well, there are “loopholes” that benefit the husband if the woman refuses to accept the get.
The Supreme Court has decided that the courts can intervene when appropriate in cases of “misuse of religion,” she said, and that’s a good thing.
Rabbi Prouser agreed that “it is the function of civil society to prevent us from bludgeoning each other with religion.”