Hadassah-Brandeis Institute

Canadian Election: A Victory for Religious Tolerance

Oct. 26, 2015

By Lisa Fishbayn Joffe

Canada got a new government last week. The Liberal Party of Justin Trudeau defeated Stephen Harper's Conservatives after Harper's campaign tried to increase turnout of Conservative voters by stressing anti-Islam controversies. This may have played a role in the Conservative loss, as many Canadians viewed this intolerant and mean-spirited attitude as, well, not very Canadian.

One of the issues was a response to a decision of the Federal Court of Canada allowing women to wear niqabs (face veils) while taking the oath of citizenship. These women signed an oath, pledged loyalty to the Queen, and had to remove their veil in the presence of a female officer to confirm their identity, but had been free to keep it on when taking the actual oath, usually in a large group citizenship ceremony. The court heard that the policy was motivated by personal discomfort by Ministers observing the ceremonies who felt it sent the wrong message.

The Conservative government did not change the law, but ordered citizenship judges not to allow women to take the oath under these circumstances. Zunera Ishaq, a Pakistani immigrant who wears a niqab, felt she was being forced to choose between her religious obligations and her citizenship. The Court agreed, finding that the Minister had no authority under the law to make up a requirement that one's mouth had to be seen moving when taking the oath (the judge could not hear individual voices in the group oath-taking). The Court pointed out that this proved nothing unless the citizenship judge was also a lip reader, and that the policy would unreasonably exclude deaf people who only spoke sign language, as well as monks who had taken an oath of silence from becoming Canadians. The Conservatives not satisfied with this result, pledged to appeal it to the Supreme Court of Canada.

One of the topics of my recent research is American laws that ban the use of "foreign law" in our courts. Since 2010, 34 of the 50 states in the U.S. have introduced bills seeking to ban the use of "foreign or international law" in state courts. Foreign law bans have passed into law in nine states: Oklahoma, Kansas, Louisiana, Tennessee, Arizona, South Dakota, North Carolina, Alabama and Florida.

The explicit objective of these laws is to prevent the enforcement of what anti-Muslim activists describe as "creeping Shariah law" in the United States. They believe that Muslim Americans have an agenda to re-create America as an Islamic law compliant country and that they seek to use the courts to do so. They caution that Islamic law discriminates against women and warn that its recognition in American courts puts the rights of Muslim women at risk.

My research suggests that this picture both exaggerates the extent to which Islamic law is applied in the U.S. and ignores the ways in which Jewish law presents many of the same challenges. Jewish women cannot initiate a religious divorce and may be held hostage if their husbands refuse to grant them one. American courts have for decades been called upon to enforce civil agreements to accept beit din (rabbinic court) arbitration in the case of get (religious divorce) refusal and to enforce clauses in civil separation and divorce agreements to deliver the get.

In New York State, the court can also take into account failure to perform this obligation under Jewish law when deciding how to divide up the couple’s assets on divorce. Preventing people from litigating about contracts related to "foreign laws" like Jewish law would take away some of the important tools American Jewish women have to end get refusal. Like theniqab case, a law justified as a protection for women from exploitation under religious law can end up denying these women the right to live full lives enjoying their religious faith and their rights as citizens.

In a campaign speech at McGill, Liberal leader Justin Trudeau, rejected this approach:

"But those who would use the state’s power to restrict women’s religious freedom and freedom of expression indulge the very same repressive impulse that they profess to condemn. It is a cruel joke to claim you are liberating people from oppression by dictating in law what they can and cannot wear… This is not the spirit of Canadian liberty, my friends."

As an ex-pat Canadian, I was very happy to see this vision of Canada win in the recent election.

Lisa JoffeDr. Lisa Fishbayn Joffe is the director of the Hadassah-Brandeis Institute Project on Gender, Culture, Religion and the Law.