Failure to give wife a religious divorce as aggravatingcharacteristic justifying a longer criminal

[Eric Rassbach]

Maryland also recently considered, but did not enact, a "gotta give a
get" law.

http://www.forward.com/articles/divorce-bill-leaves-feminists-and-ultra-
orthodox-i/

Divorce Bill Leaves Feminists and Ultra-Orthodox in Bed Together

Nathaniel Popper | Fri. Feb 02, 2007

Marriage, or at least the struggle to escape it, can make for some
strange bedfellows.

Consider, for instance, new legislation introduced in the Maryland
legislature this week that has been designed to help Jewish women get
out of their religious marriages.

The proposed bill raises a welter of constitutional and religious
questions. In the process, it has led the ultra-Orthodox community,
which is not known as a champion of feminism, to ally itself with the
National Organization for Women. And it has put the normally reclusive
religious group in the position of asking the government to intervene in
its religious affairs.

The bill in question is designed to put pressure on recalcitrant Jewish
men who refuse to grant their wives a religious divorce. Ancient Jewish
law dictates that a man must grant his wife a document of permission -
or get - before she can leave the marriage. Some men refuse, rendering
their wives unable to remarry religiously. In endorsing the proposed
Maryland law the Orthodox community is acknowledging that it has been
unable to solve the problem internally.

"Over the centuries, quite literally, there have been serious efforts to
find ways in the context of [Jewish law] to develop more effective
mechanisms for husbands not to be recalcitrant and put wives in these
painful situations," said Rabbi Abba Cohen, Washington director of
Agudath Israel. "These attempts have been unsuccessful." Agudath Israel,
an umbrella group representing ultra-Orthodox congregations, is leading
the push in Maryland.

Under the proposed law, a husband who wants a civil divorce would have
to provide an affidavit that he had taken "all steps... to remove all
religious barriers to remarriage by the other party."

The situation of agunot, as the trapped women are known, has received
increased attention in recent years. Such women are at a disadvantage,
because while a man can receive a rabbinic allowance to remarry without
providing a get, a Jewish woman requires one if she is to remarry.

>From an Orthodox perspective, several communal insiders said, the root
of the problem is that Jewish law was created at a time when rabbis had
an ability to punish men for not giving a get. Orthodox leaders say the
state needs to step in today because the rabbis no longer have that
power.

"Unfortunately the Jewish religious courts in the Diaspora have
extremely limited enforcement powers," said Nathan Diament, director of
the Orthodox Union's Washington office. "If we're serious about trying
to help these women, the way to do that is to get the secular courts to
back this up."

If the law in Maryland passes, it will not be the only such law on the
books; New York has had a similar law since 1983. But the bill's passage
in Maryland is far from ensured. A similar law has already been voted
down once in the Maryland legislature - in 2000 - and some experts,
including the top lawyer at the American Jewish Congress, say that the
law in Maryland, like the one in New York, is unconstitutional and thus
should be opposed.

"This is designed exclusively to deal with a religious problem, and it
conditions a civil benefit - a divorce - on solving a religious
problem," said Marc Stern, general counsel of the AJCongress. "We don't
think you can do that."

Many Orthodox proponents of the bill assert that it poses no
constitutional problems and say they have a letter of support from the
assistant attorney general of Maryland.

Laura Shaw Frank, an Orthodox feminist activist and lawyer, said that
even with the constitutional questions, the bill is worthy of support.
"From my understanding the New York law is probably an unconstitutional
law, as well," said Frank, who is on the board of the Jewish Orthodox
Feminist Alliance. "Does JOFA have a problem with that? Our position is
that we would like the most effort possible to go into solving the
problem, and we will allow the legislative system to determine whether
that statute is constitutional."

According to Agudath Israel, no challenge to the New York law has gone
far enough to prompt a judicial ruling.

In recent years, the Modern Orthodox community has taken significant
steps to address the issue by encouraging couples to sign a rabbinically
approved prenuptial agreement that extracts a significant financial toll
on any husband who refuses to grant a get. Ultra-Orthodox rabbis,
however, have frowned upon this solution.

Maryland - or, more specifically, Baltimore - has a large and
influential Orthodox community, and the push for the law came after a
number of women came forward publicly to describe their plight. The
leading voice was Cynthia Ohana, who left her husband three years ago
because of abuse but was never able to force him to grant her a get. The
Baltimore Jewish community has put pressure on the husband - barring him
from synagogue - but he has not budged, rendering Ohana unable to
remarry or even date within the Jewish community.

The state delegate and state senator who represent the Baltimore
neighborhood where the Orthodox community is centered are introducing
the bill. Lisa Gladden, the senator, said she believes that the bill "is
an appropriate response to my constituents - I'm a responsive
legislator."

Gladden was around the last time the bill came up, in 2000, and she
believes that this time it stands a much better chance of passing. Last
time, Gladden said, the measure was defeated because there was a Jewish
legislator who "believed it was an inappropriate commingling of church
and state. He's not here anymore."

The current bill has the support of a broad array of Jewish groups,
including the nondenominational Baltimore Jewish Council. The Jewish
proponents have secured a letter from Maryland's assistant attorney
general, stating that "although the proposed legislation presents a
substantial issue under the Establishment Clause of the First Amendment,
it would likely be upheld if challenged."

David Conn, deputy director of the council, said that the bill is
constitutional because the civil divorce courts would not have to deal
at all with the specifics of Jewish law. Moreover, Conn said that the
current problem prevents a couple from having an equitable civil divorce
as the state guarantees.

"When one person purposely subverts the nature of the civil divorce
courts, that's an issue where the state should have a concern, as well,"
Conn said.

The AJCongress's Stern acknowledges the potential good that the law
could do for Jewish women, but he said that the bill does too much to
damage the principle of separation between church and state. "Here, the
principle goes to the core of Jewish internal autonomy in the U.S.,"
Stern said. "It's a very bad idea to invite government in
involuntarily."

Efforts to legislate this issue have also been controversial within the
context of religious law. At the center of Jewish divorce law is the
principle that a man cannot be coerced into providing a get. Orthodox
rabbis have agreed that the proposed legislation would not amount to
coercion. It would also allow a man to avoid providing a get if he did
not want a civil marriage.

For the advocates of Orthodox women, the bill is a good start in
confronting the issue of agunot, but they hope for much more within the
Jewish community. "If this is going to be the end of attention to the
problem, we would be very disappointed," said Frank, the JOFA board
member.

Fri. Feb 02, 2007


-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Tuesday, May 29, 2007 4:53 PM
To: VOLOKH at law.ucla.edu; religionlaw at lists.ucla.edu
Subject: Re: Failure to give wife a religious divorce as
aggravatingcharacteristic justifying a longer criminal

Self-servingly, while old, this article I think is till accurate

Paul Finkelman "A Bad Marriage:  Jewish Divorce and the First
Amendment," Cardozo Women's Law Journal, 2 (1994) 131-172.

My own view is that the "get laws" in NY and elsewhere are flagrantly
unconstitutional as violation of both free exercise and establishment
clauses.   As far as I know the get laws are the only statutes in this
country that require someone to perform a religious act and go through a
religious ceremony in order to get a civil benefit that people of all
other faiths are allowed to received without going through any ceremony
or religious event.  

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu

>>> VOLOKH at law.ucla.edu 5/29/2007 4:19:44 PM >>>
Any thoughts on what the right answer would be if this had happened in
the U.S.?  This raises similar issues to those brought up by "gotta
give
a get" laws that have been litigated in the U.S. (in New York and New
Jersey, I think).
 
http://www.canada.com/montrealgazette/news/story.html?id=2691bd38-5189-4

888-864f-5c7f543bbf89&k=86356
 

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.

The defence has suggested a three-year sentence....

 

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