It sounds like in the previous case the wifes lawyers brought in a bunch of Rabbi’s to testify that “I also take upon myself all such further obligations for thy maintenance, as are prescribed by our religious statute.” included providing the get if it became necessary, and that this later case just used that interpretation.
Its discussed starting starting in the second half of page of 16 of the pdf. Basically, “the order had a secular purpose of enforcing a contract between parties”.
I don’t think a court enforcing a contract to conduct religious ceremonies breaks the first amendment. Googling, it appears its relatively common for ministers and the like to sign contracts with their parishes to conduct services. Here’s a pdf of the first hit on google
About once a month, Bricker takes a case recently discussed on The Volokh Conspiracy, 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.
I don’t get it. Where is it mentioned in the text quoted that he has to grant a get?
Besides, if it’s going to be considered a contract what if he doesn’t “work for [her]… and provide all that is necessary for [her]” . Let’s assume he becomes unemployed. Is a civil court going to award her damages for the lack of fulfilment of the so-called “contract”?
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.
The woman is free to enter into the contract, regardless of how misogynistic it might be. You’ll notice that the rules you quoted are based on divorce, not marriage. The rabbinical tribunal can’t force the woman to enter into the contract, she does so of her own free will, and she make her self informed of the consequences. If she thinks its unfair she should choose to stay single or marry someone else.
According to the religious expert the court consulted, the contract also included the expectation that the husband would provide the get if a situation like the one the couple found themselves in arose. Presumably then, you agree with the court forcing him to do so? After all, he to entered into the contract of his own free will, etc.
The only information I didn’tpost was the fact that there was an existing court decision, and I didn’t do that to avoid poisoning the well.
So far as I’m concerned, there’s no really useful information in that decision, which appears to me to run afoul of First Amendment jurisprudence.
In what way would the “rest of the information” have changed anyone’s views of this question? Seriously – if you’re reading this and feel that the fact there’s a court case going the other way would have changed your view of the situation, please post and tell me why.
Because it feels very much like you are playing “Gotcha”. You post the setup, let people give their opinions, then post the decision saying everyone is wrong. I find that more than a little annoying, and will avoid participating in the future.
You didn’t reveal the two pre-existing court decisions, or the fact that the Jewish ceremony involved the signing of a contract which, in the view of at least two courts who consulted religious authorities, requried the husband to provide the get.
Sounds like an interesting topic for Great Debates. Why don’t you tell us about the case and then the rest of us can play along.
See my posts. The argument in the court decision did change my view, and I explained how.
If the ketubah is a binding contract, then so is the traditional marriage vow (“Till death do us part…”).
That’s ridiculous, of course. Marriage vows are aspirational. The promises are made sincerely (usually), but they don’t legally bind someone to some good-for-nothing schlub permanently.
In divorce court, is religion ever considered? Could a court order someone to raise the kids in a certain religious tradition, or not to raise them in a different tradition, for example?
The interpretation about enforcing a contract is interesting, but it seems pretty bogus to me. If the rabbis like that interpretation, let them enforce it within their community. I really don’t think the state has any business enforcing a religious contract, especially not one with such vague terms.
In any case, it seems to me that if this contract is enforceable, it’s terrible from the beginning because of a potential violation of equal protection. Could I sign a contract with my buddy, saying that because he’s black and I’m white, I get to collect half of his income, and he has to pay it? Or would that contract be unenforceable?
Just to be clear, Schneider v. Schneider isn’t the only case on this issue and it is a nowhere near settled law. Legislatures (by enacting “get” laws), lawyers (including those who put in Lieberman clauses into a ketubah), and judges have all dealt with the issue in different ways, with different results. It is, as with most things, a lot more complicated and detail orientated, than the result in one case.
IIRC if you don’t provide him with compensation for his money the contract would be void because double IIRC and a dash of ANAL a contract needs to be equitable. There’s a specific term for this but hell if I remember what it is.
Googling says “unconscientious dealings”, but that only generaly applies if your friend was in an impaired bargaining position. I’d argue making that agreement at all is demonstration they were in a bad place to “bargain”.
Thinking on this thread. There’s really no good solution for us outsiders. Messing with religion isn’t generally a good idea. It can quickly turn into a form of persecution.
However you have to be feel bad for the victims of this. While I understand, being raised Christian (and having memories of before I moved beyond it), how insurmountable a wall this might seem to the religiously faithful victim I think the solution isn’t state decree, but the victim asking some hard questions about the nature and truth of the religion that’d inflict this on them and either making peace with singleness or moving on from that religion in search of better fitting personal truth, a faith, or the lack of, that respects who they are and helps them to be a better and happier person.
I would imagine (IANAL) that any non-illegal provision agreed to in writing between two consenting adults in a formal contract could be enforced by a civil court. Is there some exception that says religiously-oriented concepts are unenforceable?
