Thu, Jul 24, 2008

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David Strauss


Re: Religious burdens

"What, do you think, is a fair settlement for being barred from remarrying and having children or more children?"

I honestly think he owes her nothing from a civil standpoint, notwithstanding the prenup. It was not his refusal to grant a get that prevented her from remarrying but her own religious values. What he did is cruel, but it's the civil equivalent of me removing all the black tiles from a hallway and someone complaining that they couldn't get to the restroom because they can only walk on black tiles. The state should never coerce people into "playing nice" with other people's religious beliefs.

Canada's 1990 law on obstacles to religious marriage is absurd because it allows nonsensical state coercion in religious affairs.

Let's assume the following:
1. The woman needs a get to remarry under her religion.
2. Under her religion, the granting of a get is under the man's discretion.
3. The woman, under her religion, has no ability to grant herself a get or initiate any procedure that would result in one.

How, then, is the state's action to obtain her a get, an action clearly performed on her behalf and initiated by her, consistent with her own religious beliefs? How is the state a privileged source of coercion to force him to grant a get?

Now, the obligation in the prenup seems like a valid legal requirement (the law should be blind to the religious significance of contractual agreements), but it may not be valid under Jewish law, which is what the woman supposedly is trying to affirm.





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