Sunday, April 15, 2012

Multiculturalism and Intermarriage

I'm preparing for a moot court addressing a will which limits the bequest to heirs who do not marry non-Jews. One of the questions involved is whether upholding such a clause is in the interests of Canadian public policy.

[Side note: I am against such clauses, in general. I believe parents should make their Jewish lives attractive to their children, rather than rely on threats. I know that living attractive Jewish lives will not necessarily lead children to emulate their parents - but my outlook is that threats are neither healthy nor good strategy.]

I've been reading cases and articles relating to the topic. Here's a relevant piece from the Canadian Multiculturalism Act:

It is hereby declared to be the policy of the Government of Canada to

(a) recognize and promote the understanding that multiculturalism reflects the cultural and racial diversity of Canadian society and acknowledges the freedom of all members of Canadian society to preserve, enhance and share their cultural heritage;

(b) recognize and promote the understanding that multiculturalism is a fundamental characteristic of the Canadian heritage and identity and that it provides an invaluable resource in the shaping of Canada’s future;

(c) promote the full and equitable participation of individuals and communities of all origins in the continuing evolution and shaping of all aspects of Canadian society and assist them in the elimination of any barrier to that participation;

(d) recognize the existence of communities whose members share a common origin and their historic contribution to Canadian society, and enhance their development;

(e) ensure that all individuals receive equal treatment and equal protection under the law, while respecting and valuing their diversity;

(f) encourage and assist the social, cultural, economic and political institutions of Canada to be both respectful and inclusive of Canada’s multicultural character;

(g) promote the understanding and creativity that arise from the interaction between individuals and communities of different origins;

(h) foster the recognition and appreciation of the diverse cultures of Canadian society and promote the reflection and the evolving expressions of those cultures;

(i) preserve and enhance the use of languages other than English and French, while strengthening the status and use of the official languages of Canada; and

(j) advance multiculturalism throughout Canada in harmony with the national commitment to the official languages of Canada.

My sense is that (a) and (d) support the argument that the Government of Canada, as a matter of policy, recognizes the ability of members of a community to make such clauses, intended to preserve their community. [Separately, I will argue that this clause is neither racist nor discriminatory, since it is based on acceptance of a creed rather than any particular background or heritage.] But that could just be my read.

What do you think?


  1. I think your argument regarding a public policy towards multiculturalism is interesting, but you have to remember that the reason courts dislike conditional bequests of this sort is that they discourage marriage, encourage divorce, or encourage people to behave falsely. So where the testator sees the bequest as one encouraging religion, the court sees it as one which says "if you have a non-Jewish girlfriend you must not marry her; if you have a non-Jewish spouse you must divorce her or persuade her to convert." So I think a court would say "Yes, multiculturalism is important, but there are many ways of encouraging it without creating rifts between spouses:.

    The Australian case dealing with this is Church Property Trustees Diocese of Newcastle v Ebbeck [1960] HCA 88; (1960) 104 CLR 394. It deals with an attempt by the testator to get his children to marry Protestants. The clause was defeated on the grounds of public policy and I draw your attention to the last paragraph which I think sums it up very well:
    "The advancement of religion is the policy of the law and the proper subject of a good charitable trust. The law in Australia has no preferences concerning religions. It is, however, interested in the preservation of matrimony. Marriages between Protestants and Catholics, if neither spouse is ready to embrace the faith of the other, may, it is well-known, prove precarious unless there be much goodwill and tolerance. Persons in that position ought, I consider, to be free from interferences by pressure or persuasion, by either the living or the dead, in a matter that properly concerns only themselves. In short while the testator could have lawfully required that his beneficiaries, his sons, be Protestants, his attempt at testamentary proselytizing their wives makes the whole condition invalid."

    Contrast this with Kitto J's dissent in that case. He says that any conditional bequest that affects the spouse may put strain on a marriage, and it's not possible to put a hard-and-fast rule in place that determines which conditions are void. In this case, he says, the condition would bring the husband and wife closer together by encouraging her to adopt her husband's faith!

    I can't say that his dissent persuaded me, but I thought it was clever. Feel free to email me at rechovot [at-sign] if you want to discuss this further.

  2. Rabbi T, I remember being taught when I was younger that if a child marries a non-Jew you sit shiva for that child and they are supposed to become "dead" to you as if they had really died. Is this the actual halachic case? If it is, then any national public policy which would influence the courts that would be in conflict with the religious requirement would become a case of a national government "interfering" with the requirements of a religion. It would be saying that "our national requirements supercede any requirements of your religion and your religious desires come second to the 'public good.'"

    Just a slight detour to your comment about using a clause in a will that would in affect disinherit someone if they married out as being a threat, do people really tell their children what is in their wills when the parents are still youngish? This has not been my experience. My children have not the foggiest idea of what precisely is in our wills, nor do we plan on telling them that while we are still living. The only thing that they do know is where we have arranged for our burials and who our attorney is.

  3. I don't think you can argue based on the multicultural act that such clauses are in the best interest of Canadian public policy. The freedom "to preserve, enhance and share their cultural heritage" does not include imposing it on their children. It means that a person can marry a Jew, learn Hebrew, and give shiurim, and that Canada will not stop you from expressing your religion. Unless you want to argue that disowning a child who "marries out" is an integral part of the expression of Judaism, and you yourself do not believe that is the case, it does not follow that by enshrining the permission to be Jewish, the Canadian government also endorsed the shunning of a child who decided to become part of another cultural tradition, or express their Judaism in a different way.

    Recognition of "communities whose members share a common origin and their historic contribution to Canadian society, and enhance their development" means that ethnic groups and tribes are recognized as existing. Jewish people exist. They have contributed to Canadian society. Canada is thankful. "Enhancing their development" means that Canada will support positive functions and expressions by the Jewish community of their Jewish character and common origin. It does not mean that Canada is invested in the demographic continuity of the Jewish people to the extent that as a matter of public policy, Canada would endorse clauses that disowned Jews that do no marry Jews.

    It's one thing to say that people can do whatever they want with their money. It's another to say that as a matter of public policy, al pi the Multiculturalism Act, these things are in the best interest of Canada.

  4. Joe-
    Thank you for your thoughts on this; these are helpful. The dissent is creative, but I, too, am not convinced.
    I may well be in touch via email.

    1. The practice has existed, but I would not term it a "halachic requirement", particularly because removal from a will was not necessarily a part of it.

    2. I don't think people normally tell - but they might if they wanted to use it as a threat!

    I hear your potential read of the Act, but I'm not sure that's the only read. Since the Act takes as given that Canada's interest is served by the continued demographic existence of these groups, why shouldn't one generation be able to influence the next?
    And if we were to take your side, how could we justify government funding of Catholic schools?