Around the Web

Here are some important law-and-religion news stories from around the web:

More on That Jewish Divorce Case in New Jersey

Photo from Beth Din of America

A couple of weeks ago, I posted about the FBI’s arrest of two rabbis who allegedly orchestrated the kidnapping and torture of dozens of men in New Jersey. The rabbis allegedly did this in order to force the men to consent to their wives’ requests for divorce under Jewish law. Under Jewish law, a woman cannot unilaterally divorce her husband; the husband must give permission, or a get. If he refusesthe wife becomes a chained woman, or agunah, who cannot remarry.

The women in these cases were apparently desperate for Jewish divorces and took extreme measures to obtain them. They allegedly paid the rabbis tens of thousands of dollars to convene Jewish law tribunals and issue decrees allowing violence against the recalcitrant husbands. The rabbis then allegedly arranged for thugs to torture the husbands until the husbands granted the gets. This conduct would obviously be criminal under US law and the rabbis will not be able to escape punishment by arguing that their religion authorized what they did.

I expressed doubt in my post that ordering violence against a recalcitrant husband would be consistent with Jewish law. It turns out that I may have spoken too soon. My friend Michael Helfand  at Pepperdine University, an expert in Jewish law and occasional guest here at CLR Forum, explains in the The Forward that “the use of violent sanction in these circumstances has been a feature of Jewish family law for millennia.” Under traditional Jewish law, he writes, if a husband refused to comply with a tribunal’s judgment and give his wife a get,

the rabbinical court could authorize the use of violent force against the husband. While divorces [could not] be executed under duress, it was simply unimaginable that a husband would so cruelly leave his wife trapped in a nonfunctional marriage. Thus, force simply served as a vehicle to free the husband’s inner desire to do the right thing and grant his wife a divorce.

Michael doesn’t advocate this practice, I hasten to add, and he notes that the strong implication of bribery would likely invalidate the religious decrees in the New Jersey cases. In fact, Michael advocates a very American fix for the problem of agunot–a prenuptial agreement. (Michael wrote about the topic here at CLR Forum back in March). The Beth Din of America, a major Jewish law tribunal in the US, has adopted a model prenup “that requires a husband to provide his wife with a daily support payment, typically $150, for each day the two no longer live together and the husband still refuses to grant his wife a religious divorce.”

The prenup is not a panacea. A wealthy husband could make the payments and refuse to give a get, and a wife without such a prenup wouldn’t benefit at all. But the prenup might help some agunot, and wouldn’t require kidnapping one’s husband and torturing him. It’s like they used to tell us in law school: In America, when the going gets tough, the tough contract out. 

Tarabey, “Family Law in Lebanon”

9781780765624Next month, Macmillan will publish Family Law in Lebanon: Marriage and Divorce Among the Druze by Lubna Tarabey (American University of Beirut). The publisher’s description follows.

Much of the life and ritual of the Druze in Lebanon appears mysterious to outsiders, as this esoteric sect remains closed to non-members. Lubna Tarabey, herself a member of this secretive community, is ideally-placed to offer insight into the family life, tradition and religious practices of the Druze. She reaches back to the 1970s, and the start of a civil war that shattered Lebanon along confessional lines, to explore how the substantial social and political changes that have shaken the country have affected marriage and divorce practices. Through extensive research, she approaches a complex web of change and continuity, of traditional values competing with enhanced individualism and personal freedoms. In Lebanon, family law falls under the authority of its religious courts, and Tarabey traces the ways in which social and legal developments have impacted family law and the internal cohesion of the Druze.

Nichols (ed.), “Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion”

Today, Cambridge University Press publishes Marriage and Divorce in a51hSPzHqugL__BO2,204,203,200_PIsitb-sticker-arrow-click,TopRight,35,-76_AA300_SH20_OU01_ Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion, edited by Joel A. Nichols (University of St. Thomas, Minnesota). The publisher’s description follows.

American family law makes two key assumptions: first, that the civil state possesses sole authority over marriage and divorce; and second, that the civil law may contain only one regulatory regime for such matters. These assumptions run counter to the multicultural and religiously plural nature of our society. They are also wrong. This book elaborates how those assumptions are descriptively incorrect, and it begins an important conversation about whether more pluralism in family law is normatively desirable. For example, may couples rely upon religious tribunals (Jewish, Muslim, or otherwise) to decide family law disputes? May couples opt into stricter divorce rules, either through premarital contracts or “covenant marriages?” How should the state respond when couples purport to do these things? Intentionally interdisciplinary and international in scope, this volume contains contributions from fourteen leading scholars. The authors address the provocative question of whether the state must consider sharing its jurisdictional authority with other groups in family law.

State Court Says Orthodox Jewish Prenup Is Constitutional: Husband Must Give Get

We’re a little late getting to this, but the Jewish Daily Forward reports on a recent Connecticut trial court’s decision to enforce a prenuptial agreement that requires a husband to grant his wife a religious divorce under Jewish law. The prenup between two Orthodox Jews, Rachel and Eben Light, provides that, in the event the couple divorce, Eben must give Rachel a get, or ritual document recognizing the divorce in Jewish law. In fact, the prenup has a liquidated damages clause: for each day Eben refuses to give the get, he must pay Rachel $100 in damages. As of today, the damages may exceed $100,000.

The Connecticut court held that the prenup does not violate the Religion Clauses. Although there have been other cases enforcing Jewish prenups, this is apparently the first recorded case in which this particular prenup, drawn up by the Beth Din of America, a major Jewish-law arbitration tribunal,  has been enforced in the civil courts. The decision will be appealed. 

The Wider Implications of the Clergy Sex-Abuse Crisis

Baylor University historian Philip Jenkins has written a provocative essay on the wider implications of the clergy sex abuse crisis for American Catholicism. It’s not just that victims have suffered, that clergy have gone to jail, that the Church has paid billions of dollars in lawsuits, that charitable work has been curtailed, and that several dioceses have declared bankruptcy. The scandal has also diminished the Church’s voice on debates about law and religion. Where once people would have paid respect to the Church’s views, even if they disagreed with them, the crisis has so weakened the Church’s moral authority that people dismiss the institution and its arguments entirely. For example, in Jenkins’s view, the ineffectiveness of the Church’s voice has greatly influenced the debate on same-sex marriage:

One great “might have been” involves same-sex marriage. In light of present realities, it is hard to recall just how fringe and even bizarre an issue this seemed just a decade ago, and a large section of the American public is Read more

Munir on Taliq and the Pakistani 1961 Family Law

Muhammad Munir (International Islamic University Islamabad) has posted Talaq and the Muslim Family Law Ordinance, 1961 in Pakistan: An Analysis. The abstract follows. – ARH

Divorcing one’s wife is considered as one of the most hated but legal acts by God, yet divorces do happen among married couples. Muslims attach tremendous significance to issues involving Talaq. Unfortunately, Pakistani law on Talaq is one of the most controversial and confusing and its interpretation by our superior judiciary has made it even more confusing. The current law is not only against the injunctions of Islam, it has also been misinterpreted by the judiciary.

Einhorn on Jewish Divorce in the International Arena

Talia Einhorn (Tel Aviv University – Faculty of Management) has posted Jewish Divorce in the International Arena. The abstract follows. – ARH

Jewish law, like other religious laws, commands universal application to all Jews. Had all states chosen religious law to apply to marriage and divorce, limping marriages and divorces would have been restricted to persons who are regarded as belonging to several religions (decided from the point of view of that religion), or to none. This would have also been the case had all persons, regardless of the civil law applicable to such matters, adhered to religious laws. However, as long as some states, e.g., Israel, apply religious law to personal status, whereas others apply civil law, limping personal status poses a very real problem. Such conflicts befall also Jews who regard themselves bound not only by the civil laws of their state of habitual residence, but also, by autonomous choice, by Jewish law precepts.

The modern, relatively free movement of persons in the international arena has Read more