Montreal, Canada - A Montreal woman who sued her ex-husband for refusing to give her a Jewish divorce will ask the Supreme Court of Canada tomorrow to consider whether religious obligations should be enforceable in the country's courts.
The appeal calls into question the principle of separation of church and state, under which courts are generally reluctant to become involved in internal disputes over religious matters.
"The court's ultimate decision will have major implications for the ability of Canadians to determine whether, and in what circumstances, matters of religious observance or ceremony can become legally binding obligations," says the Canadian Civil Liberties Association, which is intervening in the appeal.
Stephanie Bruker wants the nine judges to restore her earlier court victory ordering her former husband to pay her damages for refusing for 15 years to give her a religious get, despite promising to do so in their divorce agreement.
A get is a Jewish bill of divorce, which a husband must give to his wife in front of rabbinical authorities. Under Jewish law, a woman may be divorced, but without a get she is commonly referred to as an agunah, meaning that she is bound to a dead marriage and cannot remarry in the Jewish faith.
Bruker and Jessel Marcovitz, who is also Jewish, married in 1969 and divorced in 1980. In their divorce agreement, along with arrangements over child support, custody and dividing their property, Marcovitz agreed to give permission for a get.
Life after divorce became bitter for the estranged couple, however, and Marcovitz recanted on the deal, saying later in court he felt harassed by his ex-wife.
Bruker sued her ex-husband, claiming $500,000 in damages for refusing to comply with the divorce agreement and another $500,000 for being restrained from getting on with her life, remarrying and having more children.
At the Supreme Court, her lawyers argued that her original award of $47,500 is "manifestly insufficient" for having been restrained from remarrying within her faith and having more children.
Marcovitz countered that Bruker herself had violated the divorce agreement by seeking extra child support, that she caused him hardship by trying to alienate him from their children, that she was not, in fact, devoted to the Jewish faith and that her lawsuit breached his right to freedom of religion and conscience.
In 1995, when Bruker was almost 47 years old, Marcovitz finally appeared before rabbinical authorities and provided a get.
Eight years later, a judge ordered Marcovitz to pay his former wife $47,500 in damages, consisting of $2,500 for each of the 15 years he refused to provide a get and therefore deprived her of remarriage, and another $10,000 for restricting her from having more children.
The judge rejected Marcovitz's claim that a civil court could not enforce a religious obligation, ruling that once he "signed a civil contract, agreeing to appear immediately before rabbinical authorities, the obligation became embodied in a secular agreement."
The ruling was overturned by the Quebec Court of Appeal, which said the obligation was "religious in nature" and therefore not "justiciable" in a civil court.
If the appeal court's logic were to rule, then contracts to print or sell the Bible, to build a mosque or to employ a rabbi could all end up being free of court scrutiny if they are broken, argues Andrew Lokan, a lawyer for the Canadian Civil Liberties Association.
Lokan says a matter should be contestable in court as long as a judge is not required "to determine matters of religious doctrine" or to breach one party's right to religious freedom.
Lawyers for Marcovitz warn the Supreme Court that courts "are ill-placed to step into the religious thicket" by attempting to adjudicate disputes involving religious practices.
"The secular court's jurisdiction begins - and ends - with the civil divorce decree: it cannot interfere with a Catholic church or a Jewish synagogue that refuses to permit a remarriage to be celebrated," Marcovitz's lawyers say in a written brief.
While Bruker might not be entitled to remarry in a synagogue, "this is not the domain or concern of the secular world."