# Separation of church and state and Jewish spouses **URL:** \ **Category:** Great Debates\ **Created:** [March 28, 2011, 6:34pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289 "2011-03-28T18:34:53Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![SecondJudith](https://avatars.discourse-cdn.com/v4/letter/s/b5ac83/32.png) [@SecondJudith](https://boards.straightdope.com/u/SecondJudith)\ **Post date:** [March 31, 2011, 2:46pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/81 "2011-03-31T14:46:22Z")
Sorry, somehow I completely skipped over that and read it as “mishnah”, which doesn’t even have the same number of letters. I still think the same issue applies, as the number 613 is a rabbinic invention and so is developing/“deducing” the correct number of laws to fit. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 31, 2011, 2:53pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/82 "2011-03-31T14:53:20Z")
If the marriage is governed by Jewish law, then the parties should abide by Jewish law. I don’t think that’s particularly complicated. Women who don’t want to have to worry about getting a _get_ (so to speak) shouldn’t have Jewish marriages. ---
**Author:** ![SecondJudith](https://avatars.discourse-cdn.com/v4/letter/s/b5ac83/32.png) [@SecondJudith](https://boards.straightdope.com/u/SecondJudith)\ **Post date:** [March 31, 2011, 4:14pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/83 "2011-03-31T16:14:20Z")
The woman argued, and I agree, that the assurance of a get was included in her marriage contract. That’s like saying “women who don’t want to worry about getting a divorce shouldn’t get married at all, even with a pre-nup”. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 31, 2011, 4:28pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/84 "2011-03-31T16:28:37Z")
Except that her marriage contract was subject to Jewish law, and that (as far as I am aware) the husband has sole authority over whether to grant the _get_. I am hardly an expert on Jewish law, so feel free to correct me. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [March 31, 2011, 4:51pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/85 "2011-03-31T16:51:07Z")
> [@Simplicio](#): > > > [@clairobscur](#): > > > > Oh! I was surprised too that you were asking such a question, given how obvious the answer was. > > > > You got us all! Well done 😃 > > About once a month, Bricker takes a case recently discussed on [The Volokh Conspiracy](http://volokh.com/2011/03/25/the-case-should-proceed-under-ecclesiastical-islamic-law-jews-ketubahs-and-gets/), starts a thread here with somewhere between 20 and 50% of the information in original posting (and without linking to the blog that spurned his interest), lets everyone waste time for a few hours responding, and then springs in later with the rest of the information. > > Its not surprising, its predictable as rain. It’s **Brickrolling**. Easiest thing to do if you see such an OP (one with a fairly obvious answer that seems to be a trick question) is ignore the thread for half a day until you can read the OP then quickly skim down to find the reveal. Generally interesting threads, but you have to wait for the gotcha ya bit to see what’s actually under discussion. … As to the OP, courts enforce private contracts all the time. They are often called on to interpret language and provisions in dispute, hearing from witnesses as to the normal or intended meaning of the language. But if it’s a matter of religious practice or tradition, then the court’s enforcing of one view over others reinforces the strength of that line of thought’s import over others. Whether or not a state appellate court has already ruled on this, I’d be wary of relying on it as precedent, and if it made it to the SCOTUS would bet against it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 31, 2011, 4:55pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/86 "2011-03-31T16:55:47Z")
> [@SecondJudith](#): > > The woman argued, and I agree, that the assurance of a get was included in her marriage contract. That’s like saying “women who don’t want to worry about getting a divorce shouldn’t get married at all, even with a pre-nup”. As a factual matter, I don’t even agree that the assurance of a _get_ in the case of a civil divorce is included in the _ketubah_. What is included is the expectation that the husband will be legitimately subject to a great deal of pressure to grant it. Which is, of course, precisely what happened here, so this may seem a fine distinction to draw. But if I cannot rely on a _pilpul_ in a discussion of Jewish law, then where can I? So here it is: there is a difference between the kinds of pressure a _Beth Din_ may apply and the kinds of pressure a civil court may apply, at least in this country. Of course, in an area governed by rabbinic law, the _beth Din_ COULD apply that great pressure, so perhaps it’s the same meaning after all. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [March 31, 2011, 4:55pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/87 "2011-03-31T16:55:48Z")
I actually know an ultra Orthodox couple that this happened to. The wife wanted a divorce. The husband absolutely refused to comply. The wife appealed to her Orthodox community and the entire community came crashing down on him, forcing him to give her a get. So problem solved, outside the confines of the secular law. And in answer to your question, no the court system should not interfere. They can get legally divorced but not divorced in the eyes of Judaism? Not the court’s problem. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 31, 2011, 4:56pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/88 "2011-03-31T16:56:29Z")
That only applies if there is conflict within the religion regarding a particular law. ETA: that was a response to **RDL** ’s post. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [April 2, 2011, 7:30pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/89 "2011-04-02T19:30:27Z")
> [@alphaboi867](#): > > I can agree to this. If the groom/husband voluntarily enters into an agreement with his bride/wife agreeing to submit to a specified Beth Din and follow it’s ruling, but then backs our she should have recourse in a civil family court. Provided of course that she’s equally bound to follow the Beth Din and in neither case would following the Beth Din’s ruling be against public policy. > > This is the case in Israel where civil marriage does not exist and everyone must marry under the jurisdiction of their religous community (Jewish, Christian, Muslim, or Druze). So while you do need to go to an Orthodox Beth Din to get a divorce it has much more power over a man who refuses to grant his wife a get. Including fines, revoking proffesional licences, driver’s licences, passports, and finally simply locking him up in jail until he relents. OR you can travel elsewhere and it will be recognized by the State. There was some hooplah a few years ago where the \ tried to make a case that all non-sanctioned marriages were invalid, but that didn’t hold very long. A _ketubah_ is a contract and a _get_ is an amendment to it. To not sign a \*get \*would unfairly hold a woman to a contract while breaking said contract. If you really wanted the legal Talmudic go-around, then not granting a _get_ for arbitrary reasons invalidates the entire marriage process anyway. A _get_ prohibits a divorced woman from committing adultery. (Marry, divorce, marry another = adultery) If she does, she is not only an adulteress, but all future children are bastards. It doesn’t sound like a big deal, but if you are Orthodox and shunned from your community, it’s…it’s like being exiled for treason. While a woman cannot “serve” a man with a divorce, she can petition the Rabbinical court to pursue one on her behalf. Men are required to provide certain things for a wife (sex is actually one of them) and conduct himself in a certain manner. Failure to adhere to the tenants of Judaism is grounds for a _get_, even if it wasn’t explicitly outlined in the ketbuah. Some aspects of Orthodox Judaism sound awfully misogynist. While that may be true, women are also exempt from several commandments because of their dependent status (and responsibilities) in a marriage. In Israel, that _get_ business can get awfully dirty, and it’s not just women who get jilted. A marriage (and divorce) is between a man and a woman, not between a rabbi and a couple. In American orthodoxy, if a woman gets a civil divorce, she will almost always be given a _get_. The law of the land would trump over the law of the Talmud in this case, but she’s still subject to the ramifications if the guy refuses. I wonder what happens if there is no rabbinical court around? Do you travel to the nearest one? Pshaw! Anyway, since a man can ransom children/support/conditions in return for a _get_, I can see why courts may intervene. There was a case in NY years and years ago about this guy who had to pay his ex wife a crap ton of money for not signing a \*get. \*Ha. ha ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [April 2, 2011, 7:34pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/90 "2011-04-02T19:34:00Z")
also, it is very very very hard for a man to divorce his wife without her consent. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2011, 10:31pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/91 "2011-04-02T22:31:22Z")
> [@CitizenPained](#): > > In American orthodoxy, if a woman gets a civil divorce, she will almost always be given a _get_. The law of the land would trump over the law of the Talmud in this case, but she’s still subject to the ramifications if the guy refuses. _Dina de-malkhuta dina._ > [@CitizenPained](#): > > A _ketubah_ is a contract and a _get_ is an amendment to it. To not sign a \*get \*would unfairly hold a woman to a contract while breaking said contract. If you really wanted the legal Talmudic go-around, then not granting a _get_ for arbitrary reasons invalidates the entire marriage process anyway. But that’s NOT the Talmudic position. A Beth Din may order a man to grant the get, and apply all sorts of pressure to him to do it, but they cannot just do it on his behalf. ---
**Author:** ![Claverhouse](https://avatars.discourse-cdn.com/v4/letter/c/13edae/32.png) [@Claverhouse](https://boards.straightdope.com/u/Claverhouse)\ **Post date:** [April 2, 2011, 10:54pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/92 "2011-04-02T22:54:55Z")
Presumably, when physical force is used to persuade a man to grant a get, by the community, _then_ the civil [criminal] law intervenes. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [April 3, 2011, 12:03pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/93 "2011-04-03T12:03:12Z")
> [@Fotheringay-Phipps](#): > > Problem is that the groom is accepting all these obligations on himself in exchange for his ownership of all household assets. > > Does the court accept that part of the contract or only the part it liked? And if the latter, can a court accept only one side’s obligations in a contract? Where does it say that a groom is coughing up his posessions? Huh? ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [April 3, 2011, 12:08pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/94 "2011-04-03T12:08:52Z")
> [@Bricker](#): > > _Dina de-malkhuta dina._ > > But that’s NOT the Talmudic position. A Beth Din may order a man to grant the get, and apply all sorts of pressure to him to do it, but they cannot just do it on his behalf. Please read what I wrote. I did not say the court would do it on his behalf. I said they would petition on HER behalf. If he doesn’t comply, he’s going to be frowned upon and possibly worse. If a man doesn’t grant a woman a _get_, he’s holding her hostage…which kind of invalidates the original marriage contract anyway. It doesn’t actually _happen_, but it proves a pretty good point. The rabinnical authority put plenty of rules in place to make sure that he can’t divorce her on a whim OR bully her by holding the _get_ over her head. btw, Jews have the lowest divorce rates. 😛 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 3, 2011, 5:28pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/95 "2011-04-03T17:28:14Z")
> [@CitizenPained](#): > > Please read what I wrote. > > I did not say the court would do it on his behalf. I said they would petition on HER behalf. If he doesn’t comply, he’s going to be frowned upon and possibly worse. > > If a man doesn’t grant a woman a _get_, he’s holding her hostage…which kind of invalidates the original marriage contract anyway. It doesn’t actually _happen_, but it proves a pretty good point. The rabinnical authority put plenty of rules in place to make sure that he can’t divorce her on a whim OR bully her by holding the _get_ over her head. OK. Which responsa, or which commentator, says that a man’s refusal to grant a get invalidates the contract? Teshuvot ha-Ge’onim? Perhaps the Rashbam? A number I perhaps missed in the Teshuvot Ba’alei ha-Tosafot? Asher b. Jehiel or Maimonides said this? It came maybe from the Vilna Gaon? Because “pretty much” invalidates the contract seems to be missing a pretty crucial claim that it _actually_ invalidates the contract. And so far as I can tell, none of the commentaries actually make this latter claim. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [April 3, 2011, 6:39pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/96 "2011-04-03T18:39:53Z")
> [@Bricker](#): > > OK. Which responsa, or which commentator, says that a man’s refusal to grant a get invalidates the contract? Teshuvot ha-Ge’onim? Perhaps the Rashbam? A number I perhaps missed in the Teshuvot Ba’alei ha-Tosafot? Asher b. Jehiel or Maimonides said this? It came maybe from the Vilna Gaon? > > Because “pretty much” invalidates the contract seems to be missing a pretty crucial claim that it _actually_ invalidates the contract. And so far as I can tell, none of the commentaries actually make this latter claim. There are various rabbinical opinions that state a man who forces his wife to stay married is violating the original contract because she does not give consent (amongst other things). These opinions draw from sources in the Talmud and tenackh. However, if such a ruling were actually put into place, then all children from that marriage would be declared mazmar. Problematic. A few thousand years go, someone’s big brothers could take care of the situation…not so much now. I am certain that thousands of responsa have been written on this. Just because one does a wrong does not mean the offended party always sees justice, hence my “pretty much” comment. Forcing a woman to stay in a relationship by coercion (which is what can happen) is a troubled way of condoning kidnapping, rape, and abuse. A man who would do this raises the possibility that he may never have intended to honor the marriage in the first place. I would like to see these rules change. Halacha draws an ananagh. The inverse is also true. There’s also such a thing as post-Talmudic law - and the latter cannot exist without the former. Unfortunately, change in marriage law is a long time out (if it even happens) since the Jewish people are so widespread and diverse. It would require a worldwide cooperation. I think our best bet is hoping the Israeli Rabbinate moves in this direction and others follow. The rabbinical authorities have put so many rules in place to protect the original contract of marriage. You know that rabbis continuously draw on liturgical sources and history to answer ethical and religious dilemmas. If they didn’t, there would be no point of a Bet Din or a rabbi in the first place. Who wants to belong to a religion in which they can’t ask questions? Since you and I both know that Jewish law isn’t dead (nor is it one size fits all authority - just look at a Passover seder in Yemen compared to one in New York) I can only conclude that you’re trying to start something. ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [April 4, 2011, 8:53am UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/97 "2011-04-04T08:53:00Z")
> [@CitizenPained](#): > > Since you and I both know that Jewish law isn’t dead (nor is it one size fits all authority - just look at a Passover seder in Yemen compared to one in New York) I can only conclude that you’re trying to start something. Knowing **Bricker** , I don’t think he is - he’s basically asking for a specific quote. As a lawyer, he’s used to being able to pick and choose quotes for and against any side depending on which one is paying him - he likes having both lists handy. So, having a specific responsa he can read would please him. Asking “Which responsa?” is just the more-specific to the case version of the Dope’s generic “Cite?” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 4, 2011, 2:41pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/98 "2011-04-04T14:41:29Z")
> [@CitizenPained](#): > > The rabbinical authorities have put so many rules in place to protect the original contract of marriage. You know that rabbis continuously draw on liturgical sources and history to answer ethical and religious dilemmas. If they didn’t, there would be no point of a Bet Din or a rabbi in the first place. Who wants to belong to a religion in which they can’t ask questions? Since you and I both know that Jewish law isn’t dead (nor is it one size fits all authority - just look at a Passover seder in Yemen compared to one in New York) I can only conclude that you’re trying to start something. I’m not trying to start anything. I’m trying to get you to substantiate your point with citation to some relevant authority besides your own post. I’m asking you speficially where you find that failing to give a _get_ constitutes an invalidation of the marriage contract, or where a _beit din_ can directly perform the action absent the husband’s assent. Here’s an example: I might claim that if a father refuses to circumcise his son, then the _biet din_ will do it. If challenged on that claim, I would reply as follows: We know that a father’s duty includes _berit mila_ for his son, right? _Bereishit_ 21:4 – “And Avraham circumcised his son Yitzchak.” But we also know that if this is not done by the father, it must be done by the _Beit din_, the rabbinical court: _Bereishit_ 17:10 – “You shall circumcise for yourselves every male.” So we see from this that there are some duties which, if not done by the person who owes the duty, may be done directly by the _Beit din_ in his stead, and the rabbis deduced this from the _pesukimp_ in which G-d reveals to Avraham the _mitzvah_ of _berit mila_. Now, do you have a similar argument in support of your point, or are you contending that the posts of **CitizenPained** should be taken with more authority even than those of the Vilna Gaon? At least he cited his Torah; you apparently don’t need to do even that. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [April 4, 2011, 11:21pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/99 "2011-04-04T23:21:16Z")
This isn’t really related to what a beit din might do or not do, but have you ever read the Canadian Supreme Court case Bruker v Markovitz? Of course, that’s a case where the civil divorce decree specifically included an agreement to immediately seek a get. Also, there’s the New York case Avitzur v Avitzur. From an outline of the facts: > [@](#): > > After 22 years of marriage, the defendant and the plaintiff were granted a civil divorce. Because they were married according to Jewish law, they signed a Ketubah before their marriage ceremony. Part of this Ketubah, or agreement spelling out the obligations and intentions of the respective parties as well as a provision recognizing the power of the Beth Din of the Rabbinical Assembly to counsel them in light of Jewish tradition. Under Jewish law, only a man can grant a divorce, or a Get. Until he does, the woman cannot remarry within the faith to anybody but a convert. Their children will then also be considered on-par with converts. In order that a Get may be obtained, the plaintiff and the defendant would have to appear before the Beth Din, per the dictates of their ketubah recognizing that body has having authority to consel the couple in the matters concerning their marriage. The husband refused to appear before the Beth Din, leaving the woman in a state of marital limbo (making her an agunah). Defendant’s motion to dismiss was denied at trial court, a ruling that was overturned in the Appellate Division; plaintiff appealed to highest court. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [April 4, 2011, 11:35pm UTC](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289/100 "2011-04-04T23:35:44Z")
> [@Bricker](#): > > I’m asking you speficially where you find that failing to give a _get_ constitutes an invalidation of the marriage contract, or where a _beit din_ can directly perform the action absent the husband’s assent. The Rambam does allow for a man who refuses to grant a get to be beaten until he consents, I think. But that’s different than the beit din unilaterally issuing a get. [Previous page](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289.md?page=4) [Next page](https://boards.straightdope.com/t/separation-of-church-and-state-and-jewish-spouses/576289.md?page=6)