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?