Sunday, October 27, 2013

Divorce? Its complicated!

In the Jewish community, a women does not have the right to divorce their husbands, in order for a divorce to be final, the husband must give permission, called a get. If a husband refuses to give a get, the marriage is still in full effect and the wife becomes an “agunah”—a chained women. A husband must give a get at his own free will, but there have been Jewish law tribunals that encourage these obstinate husbands to give gets. A common decision would be a tribunal who will ban the husband from his synagogue until he does grant and give a get. Under civil law, the wife does have the option and right to get divorced and remarried, but many women refuse to do so because it would undermine them and their children and most likely would become outcasts in their communities.

Earlier this month, two New JerseyRabbis allegedly planned the kidnapping and torturing of reluctant husbands who had refused to grant their wives a legitimate Jewish divorce. The purpose for the Rabbi’s actions was to force these men to consent to their wives’ request for divorce under Jewish law. These two rabbis charged $10,000 for a tribunal ruling that would allow the use of violence against the men and $50,000 to hire people to kidnap and torture the men. These two rabbis were caught due to a federal sting operation. An undercover female FBI agent had reached out to Rabbi Epstein and expressed that she wanted a divorce and had described her husband as a businessman in South America, who had refused to give her a get. Rabbi Epstein urged her to have her husband travel to New Jersey; subsequently, Rabbi Epstein and Rabbi Wolmark organized their own rabbinical court to issue a religious order that would authorize the use of violence to obtain a forced get. Eight of Rabbi Epstein’s associates met at a New Jersey warehouse where they had finalized the kidnapping plan and the FBI agents moved in to arrest the group. 

This makes me question whether it is Jewish tradition to conduct this kind of act to obtain a divorce. After some online research, I came across an article in The Jewish DailyForward where it explains what possible resolutions have emerged in rabbinical courts that could be used to obtain a get. Shockingly, a rabbinical court can in fact authorize the use of violent force against a husband. It is unimaginable that a husband would cruelly leave his wife trapped in a nonfunctional marriage and therefore it is believed that the use of force could serve as a medium to free the husband’s inner desire to do the right thing and convince him to grant his wife a get. The use of violence and forced coercion could protect some of the community’s vulnerable members, such as these wives. However many believe that these acts of violence and torture not only violates United States law but also Jewish Law. Any rabbinical court decree that is secured with acts of bribery would be considered invalid; violence visited on a husband pursuant to such a tainted decree would only induce him to grant an invalid divorce. Ultimately, the use of violence involves the extortion of money from people it was meant to protect, and also leads to illegal brutality and attracts questions of religion validity. Do you think this is enough religious evidence to justify the use of violent torture to grant a divorce? Is there any compelling state interest to intervene in this resolution?

This sparked my curiosity even further and I looked into other possible resolutions that have been used in the Jewish community. This particular incentive embraces the use of a contract opposed to coercion. The Beth Din of America, which is one of America’s most prominent rabbinical court took the initiative and drafted a prenuptial agreement that could be used within the Jewish community. This prenuptial agreement would require the husband to provide his wife with a daily support payment of $150 for each day the two no longer live together. Some believe that this agreement is a successful alternative to granting gets because it navigates a variety of legal complexities. The daily payment simply continues the husband’s obligation to support his wife and therefore cannot be seen as financial coercion. The prenuptial agreement does not require the husband to grant a religious divorce but only to make payments if he fails to do so, thereby enabling courts in the United States to enforce the agreement without violating constitutional prohibitions.

In Connecticut, this past January the court enforced this “Jewish prenup” above constitutional objections, noting that the terms of the agreement did not undermine the separation of church and state. In Light v. Light, Rachel Light sued in Connecticut Supreme Court saying that the couple had separated years earlier but that Eban Light had refused to grant her a get. Rachel Light asked the court to enforce the provision in the prenup ordering her husband to pay her a sum for each day he refused to grant the get. Eban Light argued that the prenup is a religious matter and therefore is unconstitutional for a secular court to enforce the contract. Judge Gould found that enforcing the prenup was no different from enforcing a secular contract and cited Odatalla v. Odatalla where a New Jersey court enforced an Islamic mahr agreement that had been signed in Iran. And in Avitzur v. Avitzur, the New York Court of Appeals ruled that it is constitutional for a secular court to enforce a ketubah, or marriage contract, to prevent an agunot. Judge Gould treated this Orthodox prenup in the same routine we would have treated any other secular prenuptial contract. 

In this case I would have to agree with Eban Light that this is a religious contract and therefore should not be interfered by a secular court. By the court already deciding on this case, it creates an entanglement because a court is developing and establishing a ruling based on a religious matter. Since the court ruled that Eban Light must pay his wife until he grants the get, the court is validating this religious prenuptial agreement that was created by a religious institution—Beth Din of America, therefore creating a preference to address religious matters not maintaining a separation of church and state and this why I strongly believe that rabbinical courts should address the enforcement of these prenuptial agreements not "secular" state courts.Would you say the same?

Do you believe that the use of violent force is justified as a traditional religious practice used in obtaining a get and therefore the state/federal government should not interfere and allow such actions to occur? In your opinion, is it constitutional for a state court to enforce the "Jewish Prenup"? Is there any compelling state interest to intervene with both these resolutions?   

8 comments:

Liz L. said...

Judaism is a religion deeply rooted in history and tradition. However, I do believe that the state has a compelling interest and, thus, should stop the violence. The Jewish people have their own laws and lifestyle that they have the right to abide by until they violate the civil rights of others. Religious communities have the right to function within their own boundaries, but are not permitted to infringe upon the rights of other people, including their own members.

Cori T said...

I think it is constitutional for the court to enforce the "Jewish Prenup" and that there is compelling state interest to intervene. The government has a compelling state interest in protecting contracts, whether they are religious or not.
The violence is trickier. I understand that it is part of the Jewish tradition but in this case, there is also compelling state interest to diffuse/oppose violent actions. I think the state has to intervene.

Terry B said...

I believe the state has to intervene into this situation because of the e high intense violence. There is a compelling state interest against torture and kidnapping, I'm pretty sure there is. This is a issue in the Jewish tradition, but when kidnapping and torture comes into play the state has no choice but to intervene. Those rabbis should have went about the situation a different way before breaking laws to make a statement.

Gabby D. said...

In this post, are these hasidic Jews? I'm only asking because of the conversation we had in class the other day stating that these hasidic communities are pretty much autonomous and rely on their own court systems to avoid the government possibly infringing on their rights. In this case, I agree with the other commenters and I do believe there is a compelling state interest for the government to act. If a woman feels trapped in her marriage and is publicly stating that and demanding help, I think the state should definitely intervene to preserve human rights and happiness. In addition, the state also has a responsibility to step in and prevent dangerous acts of violence. If this matter can be taken to civil courts and decided by the government, that is much more favorable than beating someone until they "choose" to change their mind.

Adam J said...

I agree with Cori completely. The state should enforce the prenup because it is a contract, religious or not. The violence on the other hand needs to be stopped. There is obviously a compelling state interest in stopping violence between people. One must also consider that allowing this violence could start the slippery slope leading to human sacrifice so the correct action would be to end the violence quickly.

Kaela Diomede said...

I believe that the state definitely has the right to intervene with these issues of violence. I understand that the more conservative and formative Jewish sects prefer to be more of a isolated society, and handle issues how they see fit; however, they are still American citizens and still have to abide by the federal laws. I do think that the Prenup would be a step in the right direction in protecting the rights of the minorities involved.

Maggie S. said...

I agree with Liz that the state has a compelling state interest. I'm all for free exercise until it starts to infringe about the civil liberties or safety of others. I think it's complicated because the controversy is within a single tradition, but I still think the state has an interest in protecting people even from members of their own religious community.

Tyler J said...

I agree with the previous commenters, the state has the right and should enforce these contracts. Marriage, no matter the religion, is a mixing of church and state, and therefore any and all related contracts should be seen as available for the state to intervene on.
Interestingly, there are some things for which a woman can get a Get without the husband's permission, such as if he cannot "preform his marital duties".