Under Jewish law, at least as understood by many Jews, a civil divorce decree isn’t enough to terminate the marriage from a religious standpoint — unless the husband gives the wife a bill of divorce, called a Get (pronounced just like the word “get”), she may not remarry. If she civilly remarries before receiving a Get, her sexual relations with her new husband are seen as adulterous, notwithstanding her civil divorce; also, any children born of such a civil remarriage are treated as illegitimate, and may not marry freely within the Orthodox Jewish community (and possibly also among many Conservative Jews). A recalcitrant wife may cause somewhat similar problems for the divorcing husband if she refuses to accept the Get.
Of course, all these impairments are purely a matter of Jewish law; American secular law does not at all enforce them. Nonetheless, they are taken seriously by many observant Jews, and women who have been refused Gittin (that’s the plural of “Get”)and the smaller group of men whose ex-wives have refused to accept Gittin are put in a difficult position. The ability to impose this position can also give a spouse substantial leverage to try to negotiate a more favorable settlement as a condition of giving (or receiving) the Get.
This had led some courts to order divorcing husbands to give Gets, and some legislatures to enact statutes providing for such orders. Compare Megibow v. Megibow, 612 N.Y.S.2d 758 (1994) (ordering husband to give get, and not discussing the First Amendment question) with Aflalo v. Aflalo, 295 N.J. Super. 527 (1996) (holding that such an order would violate the First Amendment). See generally Lisa Zornberg, Beyond the Constitution: Is the New York Get Legislation Good Law?, 15 Pace L. Rev. 703 (1995).
My sense, though, is that such Get laws or Get orders generally violate the Establishment Clause, because they impermissibly coerce the performance of a religious act. (See Lee v. Weisman (1992), where all the Justices agreed that coercing a religious act violates the Establishment Clause.) It’s true that the religious act has important social effects among members of that religion, and that refusing to give it could be used as a bargaining chip in property settlement or child custody negotiations. But it seems to me that these social effects within the religious community, whether as a result of the performance or nonperformance of religious acts (whether divorce, excommunication, refusal to baptize, or whatever else), or for that matter as a result of practices such as shunning, must be beyond the scope of civil law. (The argument about shunning is subtly different from the others, but they’re related, and the others all focus on the principle that the Establishment Clause bars the government from coercing the performance of a religious act.)
I was thus glad to see the most recent entry in the debate, Lowy v. Lowy (N.J. Super. Ct. App. Div. Dec. 21, 2011), which holds that orders that a husband give a Get are unconstitutional, unless the husband has contractually agreed to give the Get (or to abide by the outcome of a religious arbitration, which ends up ordering him to give a Get):
The parties were divorced on September 20, 2004 when the Family Part issued a dual final judgment of divorce, which, by agreement of the parties, incorporated the August 4, 2004 decision of a Bais Din (rabbinical court) located in Monsey, New York.... [But] the August 2004 decision of the Bais Din ... did not ... require defendant to provide his ex-wife with a Jewish divorce ... [and t]he judge’s reliance here on the purported decision of the Bais Din was [therefore] flawed ....
Once the Bais Din decree is eliminated as a source of authority for the judge’s August 27, 2010 enforcement order — as it must be — the order cannot be sustained because it constitutes impermissible judicial involvement in a matter of religious practice. Simply stated, the judge lacked the authority to compel defendant to “give the Get” where, under the facts presented here, defendant was not bound by any contractual agreement to do so.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
UPDATE: I originally accidentally wrote that a woman who has not gotten a “get” “may not marry freely within the Jewish community”; I’ve revised the post to reflect that this is generally true among Orthodox Jews and possibly also many Conservative Jews, but it probably isn’t true among most Reform Jews.