Court Rules That Judges Cannot Order Religious Divorces January 9, 2012

Court Rules That Judges Cannot Order Religious Divorces

As explained by Eugene Volokh, a recent case out of New Jersey has found judicial orders requiring a husband to provide his wife with a “Jewish divorce” (called a get) are unconstitutional.

From what I understand, if a Jewish woman is not given a get by her husband, then she is still considered married in more conservative Jewish communities.  This means she cannot remarry within that community, and any children she has with another partner will be considered illegitimate by them. The same goes for a man whose wife refuses to accept a get from him, although it seems this is a less common scenario (and even if a wife does refuse to accept the get, the husband can get around it with one of these, while the wife has no such option).

In this New Jersey case, the parties agreed they would first present their divorce to a rabbinical court and abide by that judgment.  That court granted the divorce but left the decision of the get to the couple. When the couple went to “real” court, however, the judge ordered the husband to provide the wife with a get.

By doing that, the divorce court forced him to perform a religious action to which he had not previously consented.  In other words, the husband and wife consented to do whatever the rabbinical court decided, but then the divorce court added an additional religious requirement (the get).  The appellate court in New Jersey then decided that this amounted to attempted coercion of religious activity and was therefore unconstitutional.

This is the reasonable outcome, as judicial coercion of a religious act has been held to violate the Establishment clause. Note that the incorporation of the rabbinical court order is not constitutionally problematic because the parties had already agreed to abide by that order: the civil court was enforcing a contract, not coercing religious action.

Even if we ignore Supreme Court law, I still think this is the best outcome, mostly because it would be a huge mess if the courts got involved in people’s religious rites and ceremonies in this way.

But if I put myself in the shoes of the woman who is being denied the religious divorce: OH MY GOSH THIS WOULD DRIVE ME CRAZY.  As the wiki page and the Volokh article explain, sometimes husbands use the denial of the get as a bargaining chip: “Give me the kids and I’ll give you the get,” for example.  (Really classy, guys.) But can we blame them?  The husbands are, after all, just taking advantage of a bargaining tool provided to them by their religion.  If I were going through a divorce –- or any sort of dispute, really -– I would probably take all the (legal) advantages I could get.

The truly frustrating thing to me is that the religious law itself sets men up in an advantaged position.  My (somewhat limited) research suggests that men who refuse the get often receive social sanctions, which is great, but… I would really want some legal sanctions too, if I were in that situation.  Wouldn’t you?

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  • Mr Nobody

    in israel they found a wonderful loophole, they cant force the man who refuses to give divorce to sign the get, but they can send him to jail for refusing

  • Anonymous

    I seem to remember Tony Soprano had some creative ways of extracting a ‘get’.

  • Andrew Morgan

    Totally unrelated, but thank you for reminding me that I have to finish watching that on DVD.

  • Andrew Morgan

    “My (somewhat limited) research suggests that men who refuse the get
    often receive social sanctions, which is great, but… I would really
    want some legal sanctions too, if I were in that situation.  Wouldn’t

    I would, but from a policy perspective I agree with your analysis that none should be forthcoming.  Presumably the marriage was a decision the woman and man both made without coercion.  That the religious binds she voluntary acceded to have now become too tight is not a secular matter.

  • Anonymous

    If I were going through a divorce –- or any sort of dispute, really -– I
    would probably take all the (legal) advantages I could get.

    Really? No moral principle would prevent you from taking an advantage so obviously yours only by violation of basic human rights?

  • kit

    I think that’s very interesting because in Canada, we had a similar case reach the Supreme Court of Canada and it was ruled that the court can probably force the husband to grant a get. However, the case had some interesting factors – in the separation agreement, the husband had agreed to grant one, but then he broke the agreement and refused to do so, citing his freedom of religion. 

    “The refusal of a husband to provide a get, therefore, arbitrarily denies his wife access to a remedy she independently has under Canadian law and denies her the ability to remarry and get on with her life in accordance with her religious beliefs.” (para 82)

    Justice Abella also goes through some case law from France, the UK, Australia and the United States that awards additional damages or spousal support against husbands who refuse to grant the get or ordering specific performance of an obligation in a Jewish marriage contract to submit to the beth din. 

    However, in this case the husband had already granted the get by the time it came to trial, so the plaintiff wife received $47 500 in damages (which is significant for Canadian standards, particularly for what amounts to a  private action between two non-wealthy parties). (Bruker v. Marcovitz, 2007 SCC 54)

    I think that the situation is not so bleak as you claim – even in the US, there is prior case law indicating that you can get damages should your husband refuse to grant a religious divorce. I’d look at the question in some more detail – my case brief on this case doesn’t include the US cases Abella J. refers to, but all Canadian SCC judgements are posted online on their website. If you’re a legal nerd with time, the link to this judgement is:

  • Anonymous

    It does seem like the husband’s freedom of religion supersedes the wife’s. What if the wife wants another religious marriage some time in the future? Her not being “properly” divorced prevents that.

  • Anonymous

    But can we blame them?  The husbands are, after all, just taking advantage of a bargaining tool provided to them by their religion.  If I were going through a divorce –- or any sort of dispute, really -– I would probably take all the (legal) advantages I could get.

    Uhm, yes we can blame them for being assholes if they are doing so. Particularly in the example you cite, using that kind of leverage to get full custody is despicable. I hope you aren’t actually serious that you would use every legal advantage you could in any dispute. Surely morality has some role in decision making too. Using children as bargaining chips in a divorce is particularly ugly (and something done by both mothers and fathers) since you are exploiting someone’s love for their child for your own gain and not putting the good of the child above all other considerations.

    I agree that the secular courts should not be able to force a religious ceremony on anyone. It’s unfortunate that this woman is in a difficult cultural situation thanks to her ex-husband, but they are rules that are not legally binding. She is free to get married again if she wishes, even if its not within the crazy religious sect she is in.

  • Yep, although I 
    ultimately think the court  made the right decision, this is a much closer call than it seems on the surface.  The denial of the get is directly contravening the legal process here.  In some ways, the get is just as tangible to these folks as the car or the house or the kids, and yet religious freedom is being used as a shield here to keep this important-to-the-couple item outside of the reach of civil law.  Boo.

    Thought experiment:  What if the couple belonged to some imaginary sect of Judaism where the wife gave the husband a special token upon marriage, and the mechanism of granting a get was for the husband to physically return the token to her?  Couldn’t the court order the return of the token?  I would think that in that case, the judge would be within his rights to do so.  The judge, of course, cannot order that the couple recognize this as a valid get, but if this sect believes that the exchange of the token is the only thing that matters, regardless of whether it is done willingly — what then?

    I don’t see any wiggle room for the court to rule any way other than the way they did without setting a dangerous precedent.  But let’s not make a mistake here: Religious freedom is being used and abused here to subvert the civil divorce process.  Thumbs down to them!

  • Anonymous

    Thanks for this, kit. I might just take some time to read up on it later.

  • Whirling

    One way of getting around the problem is for the bride and groom to sign a regular (i.e. not specifically Jewish, but from whatever country they are getting married in) contract that requires that any get-related issues are handled by binding arbitration.  Then, if someone withholds a get, they are in violation of a secular contract, and not a religious one.

  • Tinker

    Do we need another example showing that religion is an invention of MAN? Almost all religions are patriarchal, and ALL Christian ones are. The Christian (and Jewish) bible treat women like property.

    Sounds pretty self-serving to me. 

  • Erpease

    Note one of the inequalities is that if they don’t have a Jewish divorce, the future children of the woman are branded as mamzer (sometimes translated as bastard but more restricted) and are discriminated against under Jewish law.  The future children of the man are not mamzer.   

  • Anonymous

    Once again Claudia beats me to making the point I was going to make 🙂  .  Yes, I’ve read articles about legal tricks that people use to take advantage of their spouse in divorce cases and it makes me wonder why people can’t just be adults and split amicably.

    And I agree that the government has no right to make court decisions about religious matters. I think the woman should just remarry in another denomination so that the get is meaningless.

  • Anonymous

    While I’m sure that the judge would go out of their way to figure out some loophole to get the token back to the wife, I don’t think that the token should be legally treated differently from any other material possession. If the token was ruled to be a personal item rather than something of joint ownership, then the husband would legally be allowed to keep it. If it was something that legally both spouses owned, then the judge could decide how to split it up and they would most likely find a way to give it to the wife.

  • Anonymous

    If a husband voluntarily signed a contract that required him to give his wife a get, then I can understand how it would be legally enforcable. But if the judge required that the contract of divorce include a requirement of giving a get or if such an agreement was never in the contract to begin with, then I can’t see how that would be constitutional, at least if a case happened in America. You are required to follow what contracts you sign, but the law shouldn’t be able to force you to preform a religious act against your will. If the spouses don’t like what the religion teaches, then they should just join another religion (or none at all)

  • Anonymous

    That should be a matter for the religious leaders to decide, not the courts. She doesn’t have to be part of that religion if she doesn’t want to be.

  • Anonymous

    This seems to be a case where religion and government are combined in Israel. That wouldn’t (and shouldn’t) be the case in America. The spouses should work it out with the religious leaders or one of the spouses should join a new denomination. The courts should not be involved in religious disputes.

  • Anonymous

    This is an excellent solution.

  • Anonymous

    And as an aside, what happens if a well meaning spouse accidently loses the token or it gets stolen? Happens to wedding rings all the time.

  • Dan

    Can the courts force Catholics to get a religious “annulment” aside from divorcing the couple? If not, then this decision would further reinforce the court’s neutrality on religion.

  • Anonymous

    why are we even taking this seriously? which is to say, if “marriage” is an important, state granted right which we all share equally, well… the ritual doesn’t really matter, nor its rules? marriage is a legal, not religious state. if you want to dress it up with god bother, go for it. but the point is; are you together, legally, financially and wrt offspring and property? did you certify that with the state, for the purposes of benefits and status? it really doesn’t matter if you “sanctified” that before Baal or whatever. just show us the paperwork, like everyone else who believes in fairies or even those who don’t but want to share health insurance.

  • kit

    Well, I can see how you could distinguish the Canadian case because it includes a contract, but under Canadian law I can also see how this case (in conjunction with others) would support giving the get – primarily, I’m very drawn by the argument that the alternative would give more strength to the husband’s religious freedom than to her own – he can refuse to give the get, remarry and still live in his religion of choice and retain his connections to the community. She cannot. That could very well be read to be an infringement of her own religious freedom.

    Also, I think it’s important that in this particular case I’m referring to, they didn’t even find infringement of religious freedom because:

     I start by querying whether Mr. Marcovitz, in good faith, sincerely believed that granting a get was an act to which he objected as a matter of religious belief or conscience.  It is not clear to me what aspect of his religious beliefs prevented him from providing a get.  He never, in fact, offered a religious reason for refusing to provide a get. […] 
       This concession confirms, in my view, that his refusal to provide the get was based less on religious conviction than on the fact that he was angry at Ms. Bruker.  His religion does not require him to refuse to give Ms. Bruker a get.  The contrary is true.  There is no doubt that at Jewish law he could  refuse to give one, but that is very different from Mr. Marcovitz being prevented by a tenet of his religious beliefs from complying with a legal obligation he voluntarily entered into and of which he took the negotiated benefits. ” (Paras 68-69). 

    (which is personally my favourite paragraphs of the whole judgement because the judge called him out on his BS)

    Second, in Canadian law all rights and freedoms are limited by section 1, so the infringement on the husband’s rights in refusing to give the get can be upheld if the court deems that it serves an important public purpose, the order is rationally connected to that purpose, it impairs the right or freedom as little as possible (i.e. no alternative methods by which the court can achieve the purpose), and the deleterious effects are in proportion to the positive effects achieved. I think that even without the contract in place, the McLachlin court could be swayed to uphold the infringement under section 1.

    I won’t speculate on American law because I have no idea what is in your constitution or how it is different. I think the comparison is interesting though, because legally, Canada and America are not THAT different (with my degree I can write the bar in several states, most notably New York), but it seems to create a very different result in this case.

  • Anonymous

    First I want to make clear that I think that a husband with holding a get from his wife is horrible behavior. And I think that this sect of Judaism needs to change their teachings to allow both the husband and wife to have a way to receive a get if their spouse doesn’t provide it to them.

    However, I strongly believe that this is fundamentally a religious issue not a legal issue. The get has absolutely no affect on a person’s divorce legally. It is entirely in regard to a person’s standing in the Jewish community so the Jewish community needs to deal with it, not the courts.

    The First Amendment of the US Constitution says, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” [The 14th Amendment states that this applies to all levels of US government, not just congress]. If the courts are involved in the Jewish get, they are establishing Jewish practice in US law, which is illegal. They are also prohibiting the husband of practicing, however disgusting it may be, a part of his religion (the ability to decide, as set up by the Rabbis, whether to give a get or not), a limitation which is also illegal.

    Yes, you are allowed to limit a person’s religious rights if they break a US law that is seen as needed for the public well being (for example, the courts have found that Native Americans can be arrested for using illegal drugs that are part of ancient religious practice and a Seventh Day Adventist can be refused unemployment benefits because they refused to take work that required them to work on Saturday, their Sabbath). However in both of those cases, the individual is breaking a US law (using illegal drugs or seeking unemployment benefits after refusing a job they could have physically done). There is no such American law requiring husbands to give their ex-wife a get. The wife was treated fairly under US divorce law. She was only treated unfairly under Jewish religious practice, but the court is not allowed to regulate religions if they don’t break US law.

    I sympathize with the feeling that the woman seems to have less religious rights than the husband legally, but this isn’t true. Under the divorce laws, the husband and wife have the exact same legal rights. Also they legally have the exact same religious rights. They are both legally free to be a part of this Jewish sect or not. If the wife doesn’t like the rules on the get, she is legally free to join another Jewish sect which doesn’t allow the husband to without the get or she can leave religion all together. I understand that there are social pressures for her to stay in her faith, but it is very dangerous for the government to start making laws about what you are allowed to do religiously. And regardless, the constitution is the law of the land in America and if people don’t like it then they should pass an amendment, not just ignore the law.

  • Anonymous

    To give another example, some Catholic women might feel that they have less religious rights than Catholic men because women aren’t allowed to become Catholic priests. But I guarantee you that no US court would ever force the Catholic church in America to accept women priests because it is a fundamentally religious practice that is  not affecting US law at all. I strongly disagree with this teaching, but I know under US First Amendment rights, they are allowed to have this belief and if I want to stop it, I need to either use free speech to pressure them to change or use free speech to get people to leave the church. It is the same with the issue of the get in the story in the original post.

  • gsw

    Any and all religions that favour one gender over the other should be ignored.
    (Same in islamic courts, man gets divorce by stating intention, women must prove his shortcomings as a husband, and often buys herself free.) 

  • Anonymous

    thankss wctube

  • Anonymous
  • Raul

    I hear a lot about husbands using the Get to get advantage on a divorce, but all those hypocrites choose to approve women utilizing the kids not just to gain some advantage, but to extort, abuse and torture the husband.  Why can you all say something productive to protect the children instead of something meaningless to protect a dead tradition.

    Grow up; children are more important than Gets.

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