(2012/5773)

In May 2012, Torah Academy of Bergen County students Ariel Hochman, Akiva Marder, and Oren Strich presented a discussion of a landmark United States Supreme Court decision, Lemon v. Kurztman, in their Advanced Placement United States History class, taught by Dr. Garry Katz. Since this case has considerable impact on Halachic practice, last week (in an essay archived at www.koltorah.org) we presented the students’ summary of their presentation as well as a discussion of how Lemon v. Kurtzman impacts the construction of Eiruvin. This week we review the impact of Lemon v. Kurtzman in regards to a very controversial law, New York State Domestic Relations Law 236, the 1992 New York State Get (Jewish divorce document) Law.

In opposing briefs submitted to a New York state court adjudicating a divorce dispute involving application of this law (Becher v. Becher), the Agudath Israel opposed the law as unconstitutional and the Orthodox Union sought to uphold its constitutionality. In order to understand the dispute between these two Orthodox advocacy groups, we will review the Halachic dispute regarding the 1992 New York State Get Law. We begin with a discussion of Domestic Relations Law 253, the 1983 New York State Get Law, which is completely acceptable according to the consensus of Halachic opinions.

1983 New York State Get Law

A helpful tool in obtaining a Get from a difficult spouse is the 1983 New York State Get Law (Domestic Relations Law 253). This law requires a plaintiff in a civil divorce proceeding to file an affidavit prior to the entry of final judgment of divorce that “to the best of his or her knowledge, he or she has...taken all steps solely within his or her power to remove all barriers to the other party's remarriage” (i.e. gave or received a Get). Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 4:106) and Rav Yosef Eliyahu Henkin (letter printed in Rav Herzog’s Techukah LeYisrael Al Pi HaTorah 3:206) rule that this law is not considered coercion of the husband to give a Get. Rav Yitzchak Breitowitz (Between Civil and Religious Law, p. 203 note 599) cites several other prominent rabbis who also approve of this law.

This law is not coercive, as it in no way punishes the husband. He merely gives a Get in exchange for a civil divorce. Rav J. David Bleich (BiNtivot HaHalacha 1:37) explains that, according to civil law, one does not have a "right" to a civil divorce. Rather, it is a privilege bestowed on a citizen by the court. Withholding a civil divorce until the husband gives his wife a Get is the equivalent of not giving the husband a gift until he gives a Get.

This "Get Law," enacted in New York State, has proven effective in motivating some recalcitrant spouses to give a Get. In light of its moderate success in New York, efforts have been made to enact similar legislation in other jurisdictions where Jews live. Interestingly, Rav Asher Ehrentreu (a member of the administration of Israeli rabbinical courts) related to this author that he persuaded a judge in a former Soviet republic to withhold a civil divorce until the husband gave his wife a Get. Interestingly, in March 2006, a judge in Bergen County permitted me to administer a Get in his courtroom and refrained from signing the civil divorce decree until the Get was completed.

The Controversial 1992 New York State Get Law

Despite its many successes, the 1983 Get Law has not facilitated the resolution of all cases of Igun (inability to remarry due to a Get not having been completed) in New York State. If a husband feels so determined to harm his wife that he does not mind foregoing a civil divorce, this law will not pressure him. Furthermore, if the spouse who is listed as the defendant withholds a Get, the plaintiff cannot use this law to his or her benefit. Consequently, some felt the need to enact additional legislation to help obtain Gittin from recalcitrant spouses.

Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 4:106) further clarifies precisely what constitutes coercion. He explains that if the judge fines a husband for failing to give a Get, this constitutes illicit coercion and invalidates a Get. If, however, the civil judge, wanting the husband to give a Get, makes the husband pay his wife a great deal of financial support (Demei Mezonot), the Get is undoubtedly valid in Rav Moshe's opinion. Since no formal link exists between the alimony order and the giving of the Get, the judge's order is not considered coercive (see Pitchei Teshuvah, E.H.134:11, and 154:4). However, a Get issued on the heels of a fine imposed by a judge for failure to give a Get is invalid, since the judge's formality links the fine to the Get.

This issue is the crux of the debate concerning the Halachic validity of the 1992 New York state law. This law (DRL 236B) states that a judge shall consider the effect of either side's refusal to remove barriers to remarriage (in other words, to give or receive a Get) when dividing the couple's property and establishing the sum of alimony.

This law can be read as a financial penalty imposed on the husband for his refusal to give a Get. According to such a reading, a husband who gives a Get to avoid the ramifications of this law is considered coerced, and the Get is invalid. Alternatively, one may interpret the law not as a penalty but as a provision for a recalcitrant husband to provide his wife with monetary support. Indeed, Rav Kenneth Auman told this author that he asked two judges how they interpreted this law, and each judge responded by offering one of the two possible interpretations. Rav Tzvi Gartner (Tradition 32:3:93) cites two actual court cases that highlight this problem. In the first case, a New York judge used the Get Law to penalize a recalcitrant spouse for only belatedly participating in a Get ceremony. In the second case, the same judge ruled that the Get Law merely "addresses the parties' status as they come before the court and how that status will affect their economic futures."

Considering that the Get Law's vagueness is its obvious flaw, Rav Zalman Nechemia Goldberg told this author that the solution to this problem is simple. The law must be amended so that it will unambiguously be a support provision, making its implementation Halachically valid according to Rav Feinstein's ruling.

However, this solution is not as easy as it seems. When a civil court judge awards financial support in the form of alimony, Rav Moshe permits performing a Get even if the alimony was not warranted according to Halachah. However, Halachic authorities hotly debate this matter. Many of them disagree with Rav Moshe and believe that any monetary obligation that a Beit Din would not impose constitutes coercion to give a Get. For example, they believe that if a judge raises the alimony of a recalcitrant husband (which the judge will reduce if the husband gives a Get), he is coercing the husband to give a Get.

 Indeed, both Rav Shlomo Zalman Auerbach and Rav Yosef Shalom Elyashiv (Moriah 19:1-2:58-61) rule that the 1992 New York State Get Law is Halachically unacceptable and urge its immediate repeal. Rav Elyashiv clearly indicates that he considers the monetary payments imposed by the court on the husband to constitute illicit coercion. On the other hand, Rav Gedalia Dov Schwartz, the highly respected Av Beit Din (Chief Justice) of the Beth Din of America and the Chicago Rabbinical Council, authored an essay defending the Halachic legitimacy of DRL 236 (Journal of Halacha and Contemporary Society, Volume 27).

The Constitutionality of the 1992 New York State Get Law

The aforementioned Agudath Israel and Orthodox Union debate regarding the constitutionality of the New York State Get Law revolves around the landmark Lemon v. Kurtzman ruling that we began to discuss last week. Lemon holds that a state statute does not violate the Establishment Clause if it satisfies the following three-pronged test: (1) the statute has a secular legislative purpose, (2) the principal or primary effect of the statute is one that neither advances nor inhibits religion, and (3) the statute does not foster excessive government entanglement with religion.

Agudath Israel argued that DRL 236 is unconstitutional since it excessively entangles the government in a religious dispute and does not satisfy the third prong of Lemon v. Kurtzman. By enacting a law that is the subject of an enormous Halachic debate, New York State has taken a stand regarding a Halachic dispute, something that very much violates the hallowed American tradition of separation of religion and state. Agudath Israel also argued that the 1992 Get Law inhibits the free exercise of religion since many Batei Din would not administer a Get where the husband was impacted by DRL 236. Thus, the 1992 Get Law fails the second prong of Lemon as well.

The Orthodox Union friend of the court brief argued, on the other hand, that DRL 236 does conform to each of the three parts of the Lemon ruling and therefore does not run afoul of the Establishment Clause.

The Orthodox Union offers the interesting argument that the first prong of Lemon is not violated by DRL 236 since a husband authorizing a Get and having it delivered to his wife is not a religious act. The OU argues, that even the writing or delivery of a Get is not a religious act. It is not accompanied by any blessing or by any religious ceremony. A document is handwritten on the husband's authorization, is signed by two witnesses, and is delivered to the wife. It also serves a secular purpose of enabling spouses to remarry after a civil divorce.

The Orthodox Union also argues that the 1992 Get Law does not advance the Jewish faith since a spouse is not being subjected involuntarily, for the first time, to obligations of the Jewish faith. The law does not advance the Jewish religion since a husband or wife voluntarily subjects himself/herself and his/her spouse to a religious marriage. Having entangled one’s spouse in a religious marriage, a husband cannot then hide behind the Free Exercise Clause when asked to abide by the same religious rules in order to release his wife.

The third prong of Lemon is also satisfied, argues the Orthodox Union, since the effect of the 1992 amendment on Jewish Law is a question to be decided within the Jewish religious community, and it thus does not affect the issue of constitutionality. The Orthodox Union brief argues that the 1992 New York State Get Law is not suitable for judicial determination. It argues that an American civil court cannot find the law unconstitutional simply because in the view of some Jewish religious authorities it is not Halachically valid. Thus, the government does not find itself excessively entangled in a religious matter.

Conclusion

The 1992 New York State Get Law remains in effect despite the great debates regarding its Halachic validity and its constitutionality. As in the case with Eiruvin on government property that we discussed last week, the standards developed in Lemon v. Kurtzman have a great impact regarding DRL 236.

Postscript

Interestingly, I began administering Gittin in 1992 quite concerned about the impact of DRL 236 upon the Gittin I would administer to New York State residents. Curiously, the issue has not arisen in any of the nearly three thousand Gittin I have administered.