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Refusal to Give Religious Divorce and the Secular Legal System:

From the Canadian Press, Jan. 25, 2007 (via Daniel Pipes and David Bernstein):

The Crown says a Montreal man's refusal to grant his Muslim wife a Shariah divorce should be considered an aggravating factor when he is sentenced Friday for stabbing her and their baby daughter.... The Crown has asked for a seven-year sentence, citing the refusal to grant the Shariah divorce as an aggravating factor.

Of course, a secular Canadian divorce is all that's needed for secular purposes, in Canada and in other non-Muslim countries. But the article suggests that without a religious divorce, the wife might still be seen as married in some Muslim countries; and my sense (though please correct me if I'm mistaken) is that she might also be seen as married by the Muslim community, so that, for instance, there would be social pressure against her remarrying.

Should such extra punishment for failure to perform a religious ceremony be permitted? Or does it improperly coerce religious behavior? In the U.S., similar questions have arisen with regard to "Get laws," though these are special civil laws limiting access to divorce rather than enhanced criminal punishments.

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 Jewish community. 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 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.

The Get laws are the attempts of a few states to deal with this problem; here, for instance, is New York Domestic Relations Law § 253:

3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement:

(i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce; or

(ii) that the defendant has waived in writing the requirements of this subdivision....

6.... “[B]arrier to remarriage” includes, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party’s commission or withholding of any voluntary act....

7. No final judgment of annulment or divorce shall be entered, notwithstanding the filing of the plaintiff’s sworn statement prescribed by this section, if the clergyman or minister who has solemnized the marriage certifies, in a sworn statement, that he or she has solemnized the marriage and that, to his or her knowledge, the plaintiff has failed to take all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce, provided that the said clergyman or minister is alive and available and competent to testify at the time when final judgment would be entered....

9. Nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue....

My sense is that the Get laws, as well as enhanced criminal punishments for refusing to give a religious divorce (whether Jewish, Islamic, or otherwise), would (in the U.S.) generally violate the First Amendment, because they would indeed impermissibly coerce the performance of a religious act. 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.) 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).

Note, though, the twist in this case: It sounds like the refusal to give a religious divorce has not only a social effect within a religious community, but also has foreign legal ramifications. Might that justify legal pressure to give a divorce, on the theory that what is being required is an act with independent legal significance? Or should the religious nature of the act categorically foreclose the government (at least if the case happened in the U.S.) from mandating the act?

Finally, note that the matter may well be different if the parties had entered into a civil contract to perform a religious act (whether to give a divorce, to raise the children in some religion, or whatever else). The Canadian Press article notes one such case that was pending in January before the Canadian Supreme Court. ("The divorce agreement stipulated that [the husband] agree to the ghet -- something he did not do [for 15 years after the divorce]. [The wife], who now lives in New York, was awarded $47,500 because she couldn't marry or have children in the interim, but that judgment was overturned by the provincial appeals court.")

In any case, an interesting set of controversies -- and a reminder that a lot of the legal controversies in Western countries involving Muslim religious practices are, as a legal matter, closely connected with other controversies involving the practices of other religious groups.

pcgirl (www):
It seems to me that the Get laws you've mentioned -- particularly the New York provisions quoted -- give the party refusing religious separation/divorce even more power by preventing a civil divorce from being finalized until such religious separation/divorce has been finalized. That is, if the finalization of civil divorce is held up until the finalization of religious divorce, then the party not wanting the religious divorce has been given the ultimate bargaining chip, for now s/he controls the other person's life in both the religious AND civil realms.

This is particularly devastating, not just in terms of remarriage and illegitimacy, but also in terms of community property, should these be community property states. If one party refuses to obtain religious divorce, thereby preventing the other party from obtaining civil divorce, then a community property state could foreseeably allow the party refusing religious divorce to run up debts solely of his/her own volition and yet be accountable only for half. Although that isn't uncommon in cases not entangled with religion issues, the religion issue would only exacerbate the problem under statutory schemes like the one quoted in your post.

Thus, if I am reading this correctly, the referenced statutory scheme would seem to be fundamentally at odds with the "enhanced criminal punishments for refusing to give a religious divorce," which presumably would have been designed to even the playing field in terms of bargaining power.

Of course, those are largely policy arguments, but consider this: if the failure to finalize religious divorce impedes the finalization of civil divorce, aren't civil liberties being impinged there as well?

Or am I missing something?
5.29.2007 6:59pm
Houston Lawyer:
How does this apply to a Catholic annulment? I understand that a Catholic annulment means that the marriage was invalid. I remember that Ted Kennedy's wife refused to cooperate when he sought an annulment on the grounds that she would not agree that their marriage was anything other than valid and proper. Surely she is not required to disavow her wedding vows.
5.29.2007 7:06pm
Bored Lawyer:
You are likely correct about the First Amendment problems of punishing someone for failing to perform a religious act.

But then you can make the case more subtle and difficult. Suppose there is a prior contract involving the religious obligation. For example, suppose a member of the minority religion (Orthodox Jews, Muslims) contracts at the time of marriage that, in the event of divorce, the other side promises to do something (grant a religious divorces, have the dispute arbitrated by an ecclesiastical court according to religious law, etc.) The contract could even (truthfully) recite that the parties are being married according to religious law and they recognize that this gives them unique, additional and reciprocal obligations.

Would enforcing such contractual rights violate the First Amendment? I doubt it. I seem to recall an old Supreme Court case saying that in similar circumstances, the courts of the U.S. are merely enforcing the secular interest of upholding contractual obligations.
5.29.2007 7:18pm
Abe Delnore:
I was wondering whether this is a Get law or a Catholic annulment law, too.

At (Catholic) canon law, an annulment is not a sure thing even if both spouses agree. It's also possible for one spouse to seek the annulment while the other opposes it and insists on staying married. For that matter, a third party could bring an annulment action if a significant impediment to marriage were discovered but the spouses did not want to do anything about it. In any case, there is a legal procedure before the diocesan tribunal, which makes a judgment.

The Get/bill of divorcement procedure, by contrast, seems to be a unilateral action on the part of the husband.

In the New York statute excerpted, I see that only the individual cleric who actually solemnized the marriage can impede the civil divorce or annulment. Why is this? All I can figure is that it comports with a feature of some particular religion or that it keeps the New York courts out of having to decide to what religion or denomination any given person belongs.
5.29.2007 7:24pm
Maureen001 (mail):
Wow. The Canadian system seems to have really mixed it up on this one! There are laws that deny the legal authority of religious tribunes, etc. on the books in Quebec and Ontario, and I assume that would apply in Montreal, where this case took place. That seems to properly convey both the court's lack of jurisdiction over religious matters, and vice versa. Except the Crown is now arguing that the perp's refusal to accept a divorce not done through his religious authority as grounds to prolong his sentence. Huh?

I wonder about a Canadian court's authority to grant a divorce when the marriage took place in Lebanon. While it might be valid in Canada, wouldn't it be up to the laws of Lebanon as to its validity there? Or is there some sort of international authority that makes the Canadian divorce valid elsewhere? I plead ignorance.

And for the life of me, I do not understand what any of this has to do with sentencing this animal for stabbing his wife (who, arguably had something to do with it) OR his infant daughter (who most certainly did NOT have anything to do with it!). Three to seven years is all he'll get?

Groups trying to bring pressure upon the Canadian government (and likewise in this country) to "recognize" Shariah law are trying to more than just have it recognized. They want authorities mingled. They want decisions made by Shariah tribunals to have bearing in secular Canadian courts, as well as rulings handed down in Canadian courts to be taken into consideration by Shariah tribunal decisions. And based on the actions of the Crown in this case, it's already beginning to happen.

In this way, lies madness.
5.29.2007 7:32pm
Don Miller (mail) (www):
I had heard of the problems in Catholic divorces in obtaining annullments. I was not familiar with Jewish "Gets" or Sharia Divorces

The LDS Church has a similiar thing. Temple marriages have to receive a "temple divorce" (I don't know the official term, the common term is temple divorce) prior to a divorced wife remarrying in the temple. To the best of my knowledge, the lack of a temple divorce does not prevent a civil marriage by either party or the man from remarrying in the temple. The temple divorce is not typically granted for the wife unless she is planning on remarrying in the temple and then not until she has a fiance and is trying to schedule the wedding.

Most of this information is hearsay. I haven't ever been involved in the process. I really should ask my brother, his wife had to get a temple divorce prior to their wedding.
5.29.2007 7:33pm
Richard Riley (mail):
I think pcgirl's concern (a fair one) is answered by the fact that the N.Y. law only applies to the the plaintiff - that is, the party seeking the civil divorce in the N.Y. court. In other words, the statute says you can't obtain the civil divorce that you demand unless you are also willing to take whatever steps might be necessary to remove "any religious or conscientious restraint or inhibition" on the defendant's remarriage. It does not seem to give the DEFENDANT the right to hold up the divorce by not granting a Get or other "religious or conscientious restraint or inhibition."

That doesn't strike me as unfair. I'm surprised by Eugene's conclusion that these and similar laws may violate the Free Exercise Clause on the grounds that "social effects within the religious community" are beyond the scope of civil law. My inclination is not to insulate religious practices like this from civil law consequences. I think it is MORE respectful of religious practice - makes it more a part of the broader community rather than something sui generis and "weird" - for such practices to be subject to generally applicable laws.

As to Houston Lawyer's question - as I understand it annulment does not require the consent of the unwilling party. Certainly an unwilling party can make the proceeding more difficult but ultimately church officials can grant an annulment whether or not one party does not agree. So that's not analogous to the situation where the unwilling party's refusal means that the Get cannot issue at all.
5.29.2007 7:50pm
neurodoc:
Does Canadian law specify what can be taken into account as "aggravating" or "mitigating" factors when deciding the punishment for criminal conduct, in particular punishment for stabbing one's spouse and one's child? If the refusal to grant a religious divorce is can be considered an "aggravating factor," does that mean the possibility of an "augmented" sentence, one beyond what would otherwise be the upper limit of sentencing?

Also, it is claimed that matters are made worse because religious tribunals are not allowed to decide family law matters, like divorce. I presume religious tribunals are not allowed to decide any matters that will bind the parties absent agreement by them to submit to the authority of such tribunals, but the parties can go before religious tribunals for rulings on "shariah divorces" and "gets" can't they?
5.29.2007 8:02pm
PDXLawyer (mail):
I agree with Richard Riley. Who comes to equity must do equity. It is not equitible to demand a civil divorce if one is not willing to have a religious divorce as well.

If these laws applied to the respondent, then I could see some real First Amendment issues. I could *also* see a lot of room for bad faith game playing here (by, for instance, the petitioner deliberately doing something technical to call the religious divorce into doubt) but I have never heard of this being a problem.
5.29.2007 8:06pm
A. Zarkov (mail):
"… then a community property state could foreseeably allow the party refusing religious divorce to run up debts solely of his/her own volition and yet be accountable only for half."

Not true, at least in California. In California, once the parties separate, community property ceases to operate, so each party would be responsible for the debts he incurred after separation.
5.29.2007 8:39pm
pcgirl (www):
Richard Riley and PDXLawyer:

Thank you for your helpful comments. I seem to have skipped over a crucial phrase in the statutory text: "solely within his or her power". I was originally reading the statute to state that a plaintiff could not get a civil divorce unless the religious separation/divorce had been ACTUALLY FINALIZED. Instead, the statute quite rightly places the burden on the civil plaintiff to have also taken all steps "solely within his or her power" to (at least attempt to) finalize a religious separation/divorce.

Many thanks for the clarification.
5.29.2007 8:47pm
pcgirl (www):
A. Zarkov:

It wouldn't hold true in Louisiana either, as the parties can request a declaration from the court that the community regime is terminated, once they have been separated for 30 days, and the declaration operates retroactively to the date of physical separation.

However, I didn't want to assume the same was true in all other community property jurisdictions; hence my raising the possibility.
5.29.2007 8:52pm
PaulB (mail):
The logic expressed by Richard Riley and PDXLawyer is sound, but it still sounds like the state of New York is intruding into religious matters that are beyond the right of the government. If a woman enters into a religious marriage, knowing that the faith she professes allows her husband to unilaterally and arbitrarily deny her the right to remarry in case of civil divorce, why should the state interject itself into the matter?

If you wish to continue to be part of a religion with this belief system, you should have to live with the consequences without expectation that the state will bail you out of your conundrum.
5.29.2007 9:39pm
Bill Poser (mail) (www):
I disagree with Eugene because I think that there should not, on finer analysis, be a constitutional objection, in all cases, to forced performance of a religious act. Forced performance of a religious act is potentially problematic when it would force someone to practice a religion that he does not wish to practice or to perform an act to which he has an actual religious objection. Neither of these considerations applies here. The husband is already a Jew or Muslim who has already entered into a Jewish or Muslim marriage. No principle of Judaism or of Islam prevents the husband from granting his wife the divorce. These religions merely permit him not to. For the secular law to force the husband to perform an action on which his religion is neutral does not violate his freedom of religion.

Are you aware of the Israeli treatment of this question? Israel has a get law. The courts may not actually grant the get, since the power to do that is reserved in religious law to the husband. Instead, the courts may order the husband to grant the get, and if he fails to do so, may hold him in contempt and imprison him indefinitely. Most husbands are persuaded by the mere threat or a brief stint of incarceration, but there is one guy who has been in jail for years now.
5.29.2007 9:41pm
speedwell (mail):
Yeah, years ago my psychopath ex-husband tried this sort of thing on me. He moved to him mother's hometown in a different state and was planning for me to join him, but I was tired of his abuse and never working, and I left him and applied for a divorce. He tried to block it by writing the court that he now belonged to a fundamentalist Christian church that didn't believe in divorce, so they couldn't force one on him for religious noninterference grounds. Fortunately he couldn't afford a lawyer good enough to drag the process out. So don't think it can't happen in this country among native-born citizens, people.
5.29.2007 10:06pm
Connie (mail):
I believe that to apply for an anullment in the Catholic church, you have to have been civilly divorced for 1 year.
5.29.2007 10:13pm
Hattio (mail):
Bill Poser,
Aren't you assuming that the person is still a Muslim or a Jew? I could easily see a situation where say the husband converts. Wife then wants to get divorced because she always envisioned a Muslim/Jewish home and family life. Husband refuses on the basis that he no longer believes in the tenets of his old faith and his new faith prohibits him from participating in "false" religious ceremonies/practices. It seems to me in that case there would be a clear violation of 1st Am in requiring him to grant the religious divorce. Of course, I don't know whether either the Muslim or Jewish faith would require the husbands consent if he had already declared himself not a member.
5.29.2007 10:26pm
Milhouse (www):

My sense is that the Get laws, as well as enhanced criminal punishments for refusing to give a religious divorce (whether Jewish, Islamic, or otherwise), would (in the U.S.) generally violate the First Amendment, because they would indeed impermissibly coerce the performance of a religious act.

I think Eugene, and others who make this argument, misunderstand either the nature of the acts required, or the reason why the First Amendment generally doesn't allow the coercion, however subtly, of religious acts. Neither Moslem nor Jewish divorce is a religious act as the term is generally understood. They are secular acts, and the fact that they are required by religious law, and performed in order to comply with that law, doesn't make them religious.

What I mean is that neither act involves a declaration of faith of any kind, their validity is not affected by the performers beliefs or lack of any, and it's hard to conceive of a reason why an atheist, or a member of some other religion, having initiated a civil divorce, would have any conscientious objection to performing them at the request of their soon-to-be-ex-spouse. Any man who genuinely objects to telling his wife "I divorce you", or to writing "You are free to marry any man" on a piece of paper and handing it to her, must equally object to civil divorce, and will therefore never be the plaintiff in one; ditto for any woman who genuinely objects to hearing those words, or to receiving that document.
5.29.2007 10:29pm
Hattio (mail):
Milhouse,
You're telling me how a Muslim or a Jew would view those acts...as non-religious. Now, can you explain how an evangelical would? How about an extremely fundamentalist evangelical? I grew up in a fundamentalist church, and, while I never remember the subject coming up, I fairly certain that some of the pastors I knew would object to any involvement in any Jewish or Muslim act. And yes, they would view these as religious acts.
5.29.2007 10:38pm
ALB (mail):

If you wish to continue to be part of a religion with this belief system, you should have to live with the consequences without expectation that the state will bail you out of your conundrum.


To go back to the case in the news--the Muslim marriage, and the wife who wants a shariah divorce so she can travel freely to see her family in Lebanon. Even if she decides that she no longer believes in Islam, that may be irrelevant to the Lebanese covernment, which currently is requiring a religious divorce before it recognizes her as no longer married (though, with Lebanon's prominent Christian, Druze and Muslim communities, Lebanon may recognize a conversion; see the Becket Fund's examples of Iran, Malaysia, and Sri Lanka, where getting the courts and government to recognize a conversion can be quite difficult).

If you wish to extricate yourself from a belief system because your beliefs have changed--evangelism: the marketplace of ideas--and the religion you seek to leave will not recognize your free choice to leave, from whom else can you get aid save the State?
5.29.2007 10:45pm
Milhouse (www):
On what grounds would they object? I don't think the First Amendment requires us to stop the minute someone says "I object on religious grounds". We are permitted to inquire into the genuineness of that objection, and that includes determining whether the doctrines the person claims to follow really do imply that they ought not to do whatever it is that we'd like them to do - whether that is posing for a picture or telling their wife that she's free to remarry. (I certainly do understand why a Christian would object to divorcing his wife; but such a Xian would never be the plaintiff in a civil divorce action.)
5.29.2007 10:45pm
Bill Poser (mail) (www):
Hattio,

Well, to begin with, I suggest that my reasoning does apply when the husband does still belong to the religion in question. In all of the actual cases of which I am aware, that is the case. In the special case in which he has left the religion, at least as far as Jewish and Muslim practice is concerned, there is nothing specifically religious about the act he is required to perform, so compelling it would not seem to me to an imposition on his religious freedom. He isn't required to perform a ritual that might be offensive or to express a belief in anything, just to perform the speech act of divorcing his wife.

The case that would be the most difficult would be the one in which the husband had to perform a truly religious ritual in order to divorce his wife. I'm not aware of any religions that have such a practice, but one can imagine a case in which the husband had to offer a sacrifice and placate the god of marriage or some such thing. I'm not sure what the outcome should be in this case.
5.29.2007 10:58pm
ZH:
Hattio,

I am a Orthodox Jewish Rabbinical student, and I can tell you that Judaism does not recognoze conversions to other religions as being valid. In essence, once a Jew always a Jew. Therefore, the husband would still be required to give his wife the Get, and his conversion to another religion has no effect. However there are some well respected rabbinical authorities who have found ways to annul marriages where the husband has converted to another religion, based on technicalities in Jewish law, though the cases where these can be applied are rare.

As an aside, Jewish law does have a way for forcing recalcitrant husbands to divorce their wives. The Jewish court (Beis Din) has the legal right in Jewish law to beat the husband until he agrees to give the divorce (the same is not true where the woman refuses to accept the Get for a variety of reasons). For legal reasons this is no longer practiced (except in some of the more insular Hasidic communities), although some authorities agree that a modern equivalent would be the jailing of the husband as one of the earlier comments mentioned is done in Israel.
5.30.2007 12:21am
A. Zarkov (mail):
pcgirl:

"However, I didn't want to assume the same was true in all other community property jurisdictions; hence my raising the possibility."

I strongly suspect that with regard to this matter it works the same way in all community property jurisdictions. The potential for abuse is to too great. The non-working spouse could go on an orgy of spending after separation, with the working spouse having to pick up the tab. When net assets go negative, the spouse with the greater ability to pay is usually saddled with the debt. Community property laws usually have this asymmetry.
5.30.2007 12:22am
ronbo:
I generally agree with Bill Poser, but having given my ex a Get I would hardly describe it as a secular experience.

The Get is granted by a Beth Din, or religious court. In my case, the "courtroom" was the cramped dining room of a tenement in Williamsburg and was presided over by the 30-ish year old Hassidic rebbe who shared the place with the rebbetzin and at least five kids. The two witnesses were brothers in their early 20s who were virtually illiterate in English. The document itself was written by an elderly scribe on a parchment scroll like a Torah. Like a Torah, any error requires the document to be discarded - we made it on the third try.

I believe my divorce predated New York's Get law but I know my agreement required me to "take all steps solely within [my] power to remove all barriers to [her] remarriage" with all costs being borne by my ex. For what it's worth, I didn't feel coerced - I agreed, after all, and it didn't cost me anything.

And the sociology lesson was priceless.
5.30.2007 12:23am
Respondent (mail):

"As an aside, Jewish law does have a way for forcing recalcitrant husbands to divorce their wives. The Jewish court (Beis Din) has the legal right in Jewish law to beat the husband until he agrees to give the divorce."
Actually, only in cetain well defined circumstances does the court have the right to employ coercion. And coercion employed outside of those circumstances will often result in the Get being declared invalid, the woman thus forbidden from remarrying, and the children, as illegitimate, restricted in whom in the Jewish community they may marry.Indeed, many Orthodox Jewish groups have opposed a number of "Get law" proposals out of a fear they would lead to coerced Gittin in situations where Jewish law doesn't allow coercion.
As to the constitutional issue, I think requiring the issuance of a Get clearly violates the Free Exercise Clause in the same way compelled speech violates the Free Speech Clause, since the issuance of the Get is clearly a religious act. It would make saense to me that there should be no Establishment Clause problems where a contract has been signed (the Free Exercise Clause should be clearly waivable no less than an signatory to a contract who agrees to restrict his or her speech in some fashion undoubtedly could count on the contract's being enforced in the face of the Free Speech Clause), but, then again, wills that ban the sale of a certain property to a racial group have been declared unenforceable on the thoery that a courts enforcement of the author's private choice to racially discriminate violates equal protection. I don't see a good argument (consistent with precedent- this is no occasion to get into originalists debates about the meaning of the Establishment Clause)for allowing a court to enforce an agreement requiring performance of a particular religious act but refusing to enforce a will mandating racial discrimination. I certainly have no problem however, with requiring some kind of compensation to the party being denied relief that is reasonably attenuated to the defendant's refusal to abide by the (non-enforceable) contract, insofar as all would agree that a paid minister who refuses to perform religious duties in his or her church can be made to give his or her church its money back.
5.30.2007 1:09am
Lurker:
Why not argue that entering into a religious marriage has an implied contract to also grant a religious divorce, should the need arise. My understanding is that most religious courts are looked at (legally) as arbitration panels. So the panel requires specific performance, namely the giving of a get or a shariah divorce, even if the husband (or wife) leaves the religion. If we cloak things that way, would it deal with Eugene's free exercise concern?

When dealing with recalcitrant husbands in Jewish law, the old (semi) joking saying goes something like: "Your wife is going to get remarried one way or the other. Either as a divorcee or a widow. Your choice"
5.30.2007 1:59am
A. Zarkov (mail):
Suppose the husband no longer practices Orthodox Judaism, but his wife wishes to remain Orthodox and demands a Get. For a civil court to coerce him to give her a Get is tantamount to forcing a religious practice on him. How can this not violate the First Amendment? The state is acting purely for the benefit of wife's desire to practice Orthodox Judaism.
5.30.2007 3:23am
A. Zarkov (mail):
"Why not argue that entering into a religious marriage has an implied contract to also grant a religious divorce, should the need arise."

How is the husband supposed to know he's entering into an implied contract? Suppose the couple started out as (say) Reformed Jews, but later on wife decides she wants to be Orthodox and demands a Get. Does the New York law apply in this case? I suspect not as the couple would not have been married in an Orthodox ceremony in the first place, but I'm not sure. In any case this looks to me like an area that the state should stay away from. The law need not remedy all problems.
5.30.2007 3:36am
Nathan_M (mail):

Does Canadian law specify what can be taken into account as "aggravating" or "mitigating" factors when deciding the punishment for criminal conduct, in particular punishment for stabbing one's spouse and one's child? If the refusal to grant a religious divorce is can be considered an "aggravating factor," does that mean the possibility of an "augmented" sentence, one beyond what would otherwise be the upper limit of sentencing?


Canadian law only says that a judge will take the aggravating and mitigating factors into account when imposing sentence. There are six broad circumstances are deemed to be aggravating (relevant here: that a victim was the offender's spouse, that a victim was under 18 years old, and possibly that the offender was in a position of authority) but the statute's list is not exclusive. And the judge still has discretion to decide how the aggravating and mitigating factors should impact the sentence.

As for an "augmented sentence", that isn't a concept in Canadian law. Aside from murder, which has a mandatory life sentence, Canadian judges almost never impose the statutory maximum. If the judge finds the refusual to grant a divorce to be an aggravating factor, it might be used to justify a sentence longer than the range which would otherwise have been appropriate.
5.30.2007 7:02am
Yankev (mail):

As to the constitutional issue, I think requiring the issuance of a Get clearly violates the Free Exercise Clause in the same way compelled speech violates the Free Speech Clause, since the issuance of the Get is clearly a religious act.


Suppose the husband no longer practices Orthodox Judaism, but his wife wishes to remain Orthodox and demands a Get. For a civil court to coerce him to give her a Get is tantamount to forcing a religious practice on him.

Respondent and Zarkov,
The Get is not a "religious act" or a religious ritual in the way that Anglo-American society typically thinks of that term. Judaism is as much a legal system as a religious system. The text of the Get states that the husband, (name) the son of (father's name), also known as (list all nicknames or aliases) divorces the woman (name) the daughter of (father's name)also known as (list all nicknames or aliases)and she is now free to marry someone else. It is then signed by the witnesses and delivered in the presence of the three members of the religious court and the two witnesses, who ask the husband and wife if the Get was freely given and freely accepted. No praying, no mention of G-d, simply a legal transaction. Yes, the precise wording and technical requirements of the Get and its delivery are establihsed by religious law, but the delivery or acceptance of the Get does not require anything in the way of a profession of faith in that law.
5.30.2007 10:37am
Abe Delnore:
It seems to me that the plaintiff can't hold things up, but the individual cleric who married the couple can:

The statute obliges plaintiffs to produce an affidavit stating one of two things:
A. I have done everything I can to make my soon-to-be ex-spouse free to remarry (by seeking an annulment, issuing a bill of divorce, etc.).
B. My soon-to-be ex-spouse has released me from this obligation.

That seems to put all the burden on plaintiffs; however, a bit further along we run into the clergy veto power, in which the individual cleric who solemnized the marriage can delay proceedings indefinitely by declaring that the plaintiff has not, in fact, done everything possible to end the marriage in religious terms. The cleric's affidavit appears to trump the plaintiff's in every case. The statute provides no guidance for resolving a disagreement on this point between the plaintiff and the cleric, and the courts are specifically barred from considering religious laws. I don't see any statement in the statute that the defendant's grant of a waiver trumps the clerical veto.

It seems like a determined priest, minister, rabbi, or what have you could prevent divorce indefinitely by using this provision.
5.30.2007 11:31am
A. Zarkov (mail):
"Judaism is as much a legal system as a religious system."

But the legal part of Judaism has no force of law in American civil society. After wife receives a civil divorce, she is free to remarry. Except if she wishes to practice Orthodox Judaism, she must follow Jewish Religious law. I think you are trying to draw a distinction without a difference because the legal and religious are commingled.
5.30.2007 11:33am
JoshL (mail):

But the legal part of Judaism has no force of law in American civil society. After wife receives a civil divorce, she is free to remarry. Except if she wishes to practice Orthodox Judaism, she must follow Jewish Religious law. I think you are trying to draw a distinction without a difference because the legal and religious are commingled.


Not necessarily true. I have a sinking feeling that this debate is about to descend into halach, but the late R' Moshe Feinstein ztl (possibly the biggest American decisor of Jewish law in the last 50 years) ruled that Reform and Conservative marriages don't require Gittin (to be fair, the late R' Henkin ztl ruled the opposite way).

I'm not a big fan of Satmar chassidim, usually, but somehow their solution to the issue of Gittin has always appealed to me. Keep in mind that they're NOT beating him until he submits to giving a get, but rather beating him until the Yetzer Harah (evil inclination/spirit) leaves him and he's able to do what he wanted all along, which is give the get. How's that for legal reasoning?
5.30.2007 12:33pm
Hattio (mail):
Yankev,
Once again, you say that Get is not a religious ceremony, but the question is not whether its religious for you. The question is whether its religious for the person being required to do it. For most of us reciting the pledge is not a religious act. For others its forbidden. As to the other commentator who suggested that the person be forced to back up their beliefs with doctrinal statements; first, doesn't a secular court weighing the validity of doctrinal statements just scream first amendment violation, secondly, they could easily find doctrinal statements to back up their beliefs.
5.30.2007 1:24pm
rmark (mail):
"also, any children born of such a civil remarriage are treated as illegitimate, and may not marry freely within the Jewish community."

Unless the child turns out to be a really good looking young lady whose family has money.
5.30.2007 3:33pm
Wes Johnson:
How bout the government just stay out the marriage business? Oh wait, that would make too much sense!!!
5.30.2007 3:38pm
Respondent (mail):
rmark,
On what authority do you base that comment? The prohibition against marrying an illegitemate child is as firmly grounded as the prohibition of marrying a non-Jew (see Deuteronomy 23:3), and given the explicit biblical description of how a divorce takes place (requiring the husband to "write her a bill of detatchment and place it in her hand" before "he sends her out of his house"), it has always been understood that the specific affirmative act is required for the divorce to be considered effective. The intermarriage rate among otherwise observant Jews is extremely low, despite the existence of many young beautiful non-Jewish women with money. The firmly grounded prohibition of marrying an illegitimate child is most definitely taken just as seriously, and I cna in fact attest to a case of a marriage nearly called off because of a case with these facts- the husband to be appeared to have been the son of a woman who remarried without a religious divorce. The marriage only wnet ahead after it was determined that the although his mother didn't receive the Get before remarrying, she did receive it one before her son was conceived. This is despite the fact that the bride considers herself to be only a semi-observant Jew since she goes to work on the Sabbath.
5.31.2007 12:21am
Yankev (mail):

rmark,
On what authority do you base that comment?



His comment that religious law would be ignored if a Jew wants to marry a beautiful rich woman? I can't speak for rmark, but I've more than one person who considered it common knwoledge that Jews are all greedy, lustful hypocrites and lack any true religious convictions.
5.31.2007 4:27pm
Big Bill (mail):
Gentlemen, gentlemen! No lashon hara. No shanda fur de goyim, OK? That bit about the Satmarrers beating the husband until the yetzer hora leaves him and he can "voluntarily" (and therefore halachically) decide to give his wife a get was a bit too far. Makes decent law-abiding chassidim sound like fundamentalist Muslims with their honor killings and stuff.

That being said, y'all are a bit wrong on halacha. A man can always marry multiple wives (and have non-mamzerim kids) as long as he does what it takes to get 100 rabbis to sign on the dotted line -- if you are ashkenazi, that is. Its a bit easier for Sephardim like Hagay Batzri right there in LA. Admittedly it is not possible for every Jew. One must have a considerable amount of religious "pull" (or cash), however.
5.31.2007 10:55pm
Yankev (mail):

No lashon hara. No shanda fur de goyim, OK? That bit about the Satmarrers beating the husband until the yetzer hora leaves him and he can "voluntarily" (and therefore halachically) decide to give his wife a get was a bit too far.

What makes it shanda fur de goyim (and therefore chillul HaShem) I understand. What makes it lashon hora I do not understand, unless this would be a case of violating dina d'malchusa dina.
6.1.2007 12:31pm