By Janet Keeping President and Dan Shapiro
Research AssociateCALGARY, AB, Jan. 15, 2010/ — Religion is often invoked as a justification to oppress women, and could also play a leading role in ending it. But it shouldn’t be with the help of government.
Eradication of discrimination against women within faith traditions is to be encouraged. But even where legislation could eliminate discrimination, government should stay clear of playing a direct role in religious reform.
This is – is it not? – the essence of freedom of religion.
For example, a decision by the Roman Catholic Church to ordain women would advance gender equality. But for such a change to be mandated by our elected representatives should be neither expected nor desired. This is a matter for Catholics to sort out among themselves.
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The issue here isn’t about purported religious practices that violate criminal law, such as female genital mutilation or human sacrifice. In such circumstances, religious freedom would be no defence.)
Canadian Constitution stands behind religious freedom
The Canadian Constitution sends very strong signals on the need to keep religion out of government and, conversely, government out of religion. Section 2 of the Charter guarantees everyone freedom of conscience and religion, and the Supreme Court of Canada has ruled that freedom of religion includes freedom from religion. So Canadians are as free to be atheists as to be believers. And given the section 15 Charter right to equality, no one religion or set of beliefs can be given priority over any other.
Canadians have the good fortune to be much freer than most people in the world to choose for themselves the values – religious or not – that will govern their lives. But have we been vigilant enough in guarding this precious separation of church and state?
Apparently not.
Parliament eroded state-religion separation in 1990
Consider Parliament’s 1990 amendments to the Divorce Act. Judaism gives husbands the unilateral right to withhold religious divorce—called a get—thus making it impossible for wives to remarry and have legitimate children within the Jewish faith. But since 1990, section 21.1 of the Divorce Act allows a woman denied a get to formally ask her husband to give her one. If he doesn’t, the court may refuse to hear any of his claims for spousal support, child custody or other remedies usually available to divorcing couples under the Act.
In effect, Canadian divorce courts can coerce a Jewish husband to make a particular religious decision, that is, give his wife a religious divorce. By forcing grant of the get, the court—in order to guarantee the wife greater fairness—is intruding on the husband’s right to practice his religion.
Do Canadians want the state to resolve religious issues?
Do Canadians want the state deciding what counts as fair within religious traditions? Surely the fact that the woman – who still has access to civil divorce – cannot get a religious divorce without her husband’s consent is a problem for Judaism to resolve, not the law courts.
Although the language of the 1990 amendment applies equally to people of all religions, it was designed specifically to deal with gender inequality in Judaism, since the power to withhold a religious divorce doesn’t rest with husbands alone in any other major faith tradition. Section 21.1 applies to religious individuals not religious decision-making bodies, but nevertheless sets a dangerous precedent. What prevents lawmakers from intruding into other religious practices? And if government can do this, what is left of freedom of conscience or religion?
Burka issue should be resolved by Muslims
Recently some Muslim organizations called for a legal ban on the burka—a full-body covering worn by some Muslim women—on the grounds it isn’t part of “true” Islam. Canadians, however, should insist Muslims sort out the burka issue themselves.
Inviting politicians to rule on the correct interpretation of any faith is unacceptable in a free society, no matter how laudable the goal of ridding religions of discrimination against women.
Separation of religion and government is a good thing—both for religion and government.
But, we permit the distinction to be blurred at our peril.
Janet Keeping is president and Dan Shapiro is research associate of the Sheldon Chumir Foundation for Ethics in Leadership. The Foundation will be hosting “Freedom of religion in Canada today: Three issues” on Jan. 28 in Calgary. 
