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The problem of religion-based laws in a secular state

Some people are fearful that Sharia law (i.e., laws that are based on Islamic religious beliefs) will be introduced in the US and are taking steps to pre-emptively pass legislation that would prevent this from happening. As one might expect, I am opposed to any laws or legal system that depends upon religion for their justification. We have a secular constitution and the Establishment Clause should effectively bar any government action that seeks to advance or hinder any particular religion or advance or hinder religion in general.

So I was puzzled by this news item that said that an effort to ban Sharia law in the state Florida is running into problems because it might have the incidental effect of also banning some Jewish religious laws.

The bill (SB 58) would ban courts or other administrative authorities form using religious or foreign law in deciding matters related to family law, including divorce and child custody.

Critics, including the Florida Bar, the Anti-Defamation League, the ACLU of Florida and the National Council of Jewish Women, contend the bill would have a negative impact on Jewish divorces, called “gets,” and could trouble the state’s relationship with Israel. Under Jewish law, only a man can grant a divorce to a woman.

That violates Florida and federal constitutional protections, David Barkey, religious freedom counsel for the Florida Anti-Defamation League told the panel. And it would bar courts from recognizing any divorce settlements granted under Israeli or Jewish law, he said.

The bill would ban courts from basing a decision regarding family law cases on a foreign law that does not grant the parties the same constitutional rights and privileges guaranteed by the state or federal constitution. And it would ban courts from enforcing decisions, such as alimony or child custody, granted in foreign courts that are not the same as state law.

What is going on here? Is the article saying that currently, under Jewish law, women cannot get a divorce unless their husband grants it and that this trumps the equal-protection constitutional clauses that grant women rights under secular law? Or is the issue that the state would not recognize a divorce granted under Jewish law?

I first heard about this issue of ‘gets’ some time ago but put it aside to try and understand later.

According to Jewish law, a husband must agree to give his wife a get before she can remarry within the faith, have additional children, or uncover her hair. In the meantime, she is known as an aguna, literally, a “chained” woman.

Religious institutions can of course make all the rules they want but they should only be binding on those who freely choose to be so bound. So Christian, Jewish, and Muslim religious institutions can decide what marriages and divorces they want to recognize. But it is not at all clear to me why any government agency should recognize those rules at all.

After all, some secular divorce laws are designed to protect the weaker party (usually the wife or children) from being summarily dumped by the dominant one (usually the husband). If religious divorce laws enable one party to freely walk away from all obligations, why should the state allow that?

Any legal scholars who can shed any light on this?

Comments

  1. Vicki says

    The only justification I can think of is one that came up in New York state some years ago: the state was trying to find a way to make issuing a get, if the woman wanted one, a condition for granting a secular and legally recognized divorce. (Not “we don’t recognize Israeli divorces” but “if you want a divorce in New York, and the woman wants a get, that’s a condition for the divorce.” iThe trick was finding a wording that avoided establishment of religion. I think the legisliature settled on something like “both parties must swear or affirm that they have done anything necessary to enable the other party to remarry once this court grants a divorce” (a phrasing that doesn’t actually explicitly say anything about religion or gender) but I don’t know what the state courts thought about that. (IANAL and all that.)

  2. trucreep says

    Not a scholar, but it’s my understanding that the parties involved agree to apply Jewish or Sharia or any other law at the time of initiating a contract or what have you. So under state or federal law, it’s set up to have both parties agree to conditions set by the “other” law they’re applying.

  3. slc1 says

    AFAIK, the issue concerning a “get” means that the ex-wife can’t get re-married in an Orthodox Jewish ceremony unless her ex-husband agrees. In no way, shape, form, or regard is she prevented from getting re-married in a civil ceremony. This is similar to the situation in the Raping Children Church where neither party after a divorce proceeding can be re-married in a Catholic ceremony unless the Church has granted an annulment to to the marriage.

  4. pianoman, Heathen & Torontophile says

    @slc1

    and that annulment will likely be granted persuant to the amount of money you pay them to consider it. It’s amazing how god can be bribed that way.

  5. says

    My thoughts are similar to trucreep’s. If a Jewish woman doesn’t want to follow Jewish divorce law, she wouldn’t have to. There’s nothing necessarily keeping her from remarrying without a get if she doesn’t wish to follow those rules. The concern that I would have, though, is whether or not these women are agreeing to these rules out of their own will or are they agreeing because they feel compelled to do so? These religious exceptions would not seem to protect against the latter, which I find unfortunate.

  6. Mano Singham says

    I follow the arguments being presented here but then why are all these groups upset about this new law, unless it would outlaw such voluntary agreements?

  7. AsqJames says

    trucreep @ 2,

    Not a scholar, but it’s my understanding that the parties involved agree to apply Jewish or Sharia or any other law at the time of initiating a contract or what have you. So under state or federal law, it’s set up to have both parties agree to conditions set by the “other” law they’re applying.

    I take then that the US legal system has no equivalent of the concept of “undue influence” or “unfair terms”?

    See here for an explanation of the former: http://www.e-lawresources.co.uk/Undue-Influence.php. The latter is primarily concerned with consumer protection (see here: http://www.e-lawresources.co.uk/Unfair-terms—regulation-by-common-law.php), but I think it’s moving in the direction of being more widely applied/legislated for.

    IANAL either, but I would hope a case could be made that in many religious cultures (especially Islam and orthodox Judaism) fathers/husbands exert undue influence over their daughters/wives.

  8. jamessweet says

    Yet another not-a-lawyer chiming in… my understanding was similar to trucreep’s… My impression has been that what’s essentially going on here is that religious law is being applied voluntarily, and once an agreement is reached, the civil courts cooperate by making it binding. The attempts to “ban” Sharia law would undermine that arrangement. Whether that is a good thing or not is difficult to say…

  9. slc1 says

    Not true if the conditions in the religious “laws” violate civil statutes. In no way, shape, form, or regard can a civil statute be overruled by a religious “law”. A woman who has been divorced according to civil law can get married again in a civil ceremony, regardless of what the Orthodox Jewish authorities or the Raping Children Church have to say about it. To do otherwise would violate the separation of church and state.

  10. Mano Singham says

    Could it be that the civil courts consider the marriage/divorce laws of religions that are voluntarily subscribed to by both parties as contracts that are binding? Then if one party wants to later break it, it is considered a breach of contract and adjudicated accordingly, with the religious underpinning ignored? In other words, it would be similar to a pre-nuptial agreement.

  11. Corvus illustris says

    This is harder knowledge on the subject, googled from womenslaw.org:

    In 1983, New York State passed the Get Law: Domestic Relations Law §253, which states that prior to a the court granting a civil divorce, both parties to the divorce will take all steps possible to remove any barriers to remarriage that the other party might encounter. This effectively means that in the State of New York, before a civil divorce is finalized, a Jewish husband must grant his wife a get. If you live New York State, be sure to talk to your civil lawyer and your rabbi about how to ensure that your husband gives you a get.

    In 2007, the Maryland State Senate failed to pass a similar law, Bill 533. No state other than New York currently has get legislation. There is, however, case law in the statutory annotations of many states; this means that in any state, a court may or may not order a husband to give a get, depending on the circumstances of the case. Get cases are sometimes argued under the “free exercise” clause of the First Amendment of the United States Constitution, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” For example, in one New Jersey divorce case, the court decided that forcing the husband to give a get fulfilled the secular purpose of completing the divorce; since no religious ritual was required in order to obtain the get, and since the get in no way impacted his ability to practice his religion, his First Amendment rights were not infringed by this requirement.

    Apparently NJ’s First Amendment differs from mine, but IANAL.

  12. slc1 says

    If such a contract is in contradiction to civil statutes, it is unenforceable. I fail to see how a woman can be prohibited from undergoing a civil marriage after a legal civil divorce unless her husband gives her a “get”. That would appear to be a violation of church and state separation, any more then the Raping Children Church can prevent a woman from remarrying in a civil ceremony absent an annulment issued by the church to her previous marriage. Of course, neither the orthodox synagogues or the RCC are required to officiate or recognize the second marriage.

  13. Lucas Beauchamp says

    Any prenuptial agreement that states that the disputes between the parties will be settled according to Sharia or Jewish law would be unenforceable. Not only are there broad issues at stake, but the courts cannot be put in a position of determining what Jewish law or Shariah is or whom to recognize as a proper interpreter and therefore cannot determine whether the parties have complied with the contract. The prenuptial agreement could presumably state that the law of Israel or Saudi Arabia would apply, but they could probably only do so if one or the other were a resident of that country.

    The more difficult issue is whether divorcing spouses can decide to arbitrate their differences before someone applying Jewish law or Sharia. Ordinarily, people can agree to arbitrate before whomever they want. But what if the the arbitrator’s ruling violates the public policy under the law that would otherwise govern? The courts have struggled with this question in many contexts, not just in cases involving religious or family law.

    On a more social issue, the whole idea of the woman’s free choice under such circumstances is difficult. A woman whose life is built around her community will have a hard time saying that she does not want the rabbi or imam telling her what is going to happen in her divorce.

  14. Mano Singham says

    Thanks for this clarification. This whole discussion reinforces the truth that mixing religion with the state creates a mess and that countries should be run on secular principles.

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