Ontario has chosen the following way to deal with this issue: anyone who refuses to volintarily remove a religious barrier to remarriage is disentitled to make an application for certain types of court relief, or defences to same.
This seems to me a reasonable compromise: the other person isn’t forced to do anything - they simply disentitle themselves to certain, defined types of judicial relief (at the discretion of the court) if they fail to do it.
Even that is going too far in my book. The State should ignore the religious issues altogether. Dissolve the legal relationship, determine custody/visitation/support of children, divide marital property/debt, and that’s it. Let the parties deal with their own religion.
There was an episode of the Soprano’s where it seemed like a coerced get was still worth the effort (in fact I think Tony Soprano got half of someone’s busniess for coercing teh son in law to divorce the business owner’s daughter) so it must be true.
In Arizona, the religion the children are to be raised in, if any (or multiple), is stated in the divorce and custody proceedings, and must be signed by at least the person seeking the divorce and the judge(if the divorce and custody agreement are uncontested). Yes, the courts can order someone to raise the child(ren) in a particular religious tradition. They can also bar a parent from steeping a child in a particular religion. I am not a lawyer, I am someone who got divorced in Arizona, and had to deal with this clause in my divorce and child custody decrees.
I’m not sure how I feel about the get issue, but I think it’s very different from a court ordering the Catholic Church to grant an annulment. One difference is that in the get situation, the court is not ordering a third party to do anything. The husband grants the get, not the rabbi or the synagogue. The second difference is that an annulment or lack thereof has the same effect on both parties- if an annulment is granted , both parties are free to remarry so far as the Catholic Church is concerned and if there is no annulment, neither is free to remarry.
I think I like NY’s solution better- the final judgment of divorce won’t be granted until either the plaintiff or both parties ( depending on the type of divorce) swears that 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 defendant’s remarriage following the annulment or divorce or that the other party has waived this in writing and another section of the Domestic Relations Law states that the court shall consider the effects of a barrier to remarriage when setting maintenance or dividing property. Doesn’t involve ordering anyone to do anything , leaves both parties in the same position regarding religious remarriage, and eliminates the use of a get to harass or coerce.
They read it with the context of thousands of years of Jewish legal tradition, which is what the rabbis came in to testify about. Whether or not you think religious contracts among people should be brought to a civil court to settle, a ketubah most certainly does imply that to Jewish people who are familiar with them.
Yes, I know that. It’s for that reason that, traditonally, a Beth Din may validly impose severe sanctions on the husband to force him to sign the get. I’m well aware of that tradition.
But when a civil court accepts the testimony of rabbis as to the validity of a religious tradition, that seems to me to cross the First Amendment line. The court can apply the words as written without invoking religious authority, but when they need expert testimony from religious authorities, they (in my view) enter a highly suspect area.
In the instant case, husband Scheinder testified that he regarded the ketubah as purely ceremonial and lacking in any contractual force. Surely it’s possible for that to be true. I mean, the laws regarding kasruth are equally well documented, but you wouldn’t say that a Jew that felt it was okay to mix linen and wool in a single garment was lying, would you? It’s possible for an individual Reform Jew to view nearly the entirety of halakhic law as mere superstituion and not binding, is it not?
Wouldn’t treating the ketubah as a contract and giving it legal force also require giving legal force to all other aspects of the ketubah as well? Most notably that “trousseau that she brought to him from her father’s house, in silver, gold, valuables, clothing, furniture and bedclothes” all belongs to the husband in exchange for 100 silver zuzim", but also - based on the rationale of this decision - including any other Jewish religious laws relating to marriage and divorce?
Can a court just split out one clause that it likes and finds handy?
My answer won’t be very useful, inasmuch as I don’t agree with the court decision we’re discussing.
The neutral answer is that the court is a finder of fact. The court must find that a contract existed, and if it did, what terms it contained. As a finder of fact, it’s entitled to accept or reject testimony as credible.
However, I don’t see on what basis the court can analyze the plain language of the ketubah and accept only part of its terms. To reach that conclusion, the court would have to rely on other evidence in the record. As Second Judith suggests, if a parade of rabbis took the stand and testified that the common understanding of Jewish people was that the 100 silver zuzim thing was fanciful language not intended as a serious term, but the implied statement that the husband’s obligations include granting a get was universally acknowledged to be serious, then presumably the court could adopt that finding.
The problem here is the potential use of the Get as a cynical method of blackmail against the woman - that is, husbands holding out purely to better their financial position vis. religiously observent ex-wives.
In a balancing of harms, I do not see any major downside to imposing litigation burdens in this case. The Get procedure is purely vestigal, there is no real depth of religious committment to not granting it - in fact, the religious expectation is that it will be granted. The legislation removes the incentive to its (improper) use as blackmail.
I’m not sure why rabbinical testimony on halachic tradition is different than any other kind of expert testimony.
I wouldn’t say “superstition”, but the premise of the entire Reform movement is that halacha is non-binding, yes.
And with that in mind, frankly, if he thinks the ketubah is purely ceremonial, I’m not sure why he has an issue granting (what to him would then logically be) a purely ceremonial get. Except to be a dick. But you don’t have to be a specific kind of Jewish for that.
The difference is that the subject matter is something that our constitution places beyond the ken of civil government authority.
If an expert testifies about what a blood splatter pattern means, the court is free to accept his conclusions or reject them in favor of another expert’s different conclusions. Either way, nothing constrains the court from adopting the position that one expert is right.
But when an expert testifies about the meaning of a particular religious ritual, especially in the absence of extransic evidence, the court cannot reach a similar conclusion without treading into the area of religious practice. Religious practice is different from blood splatter patterns because the First Amendment commands that government shall make no law respecting an establishment of religion, and cases interpreting that dicate have generally hewed to the proposition that “excessive entanglement” between government and religion should be eschewed.
When a court finds that a particular religious expert’s conclusions are true, about a matter of religious practice or faith, it seems to me to challenge that general precept.
Good point, and I’m certain that this result arose from the court’s certainty that the guy was being a dick.
Right – which is why I said an individual Reform Jew could reach the conclusion that it was all superstition, even though Reform Judiasm itself merely holds that halakhic law is non-binding.
I have less discomfort with spillover among religious contracts and civil contracts than it seems you do, but I am assuming that is both because the UK doesn’t have such a high level of alarm at religion and law being mixed up with each other, and because there is so much case law and legal activity in Judaism that it doesn’t strike me as odd to have a court determine that a man must give his wife a get. So, to answer this question from the OP:
Sure, why not, if a civil court enforces any other private contract between or among people in its jurisdiction?
The OP didn’t specify whether it was a US civil court or not; it seems based on your posts that the only reason not to is to stringently enforce the aim of having no religious content at all addressed in a civil court. I find this a bit overwrought, but not inherently objectionable.
I agree that individual Reform Jews are able (and indeed encouraged) to make up their own minds about halacha (and I’m pretty sure that’s what I said, or was trying to say). I still don’t think the word “superstition” is appropriate, since halacha doesn’t involve belief (it’s case law) and it isn’t supposed to be supernatural. It’s about contracts and actions. I would say “meaningless tradition” instead of “superstition”, since I can’t find any way to make the latter apply, unless you have a different definition than I do.
This is a bit off subject, but my hypothetical Reform Jew would be referring to the origin of the rules, not their application. He says, in other words, “I don’t follow the mitzvot d’oraita because they arise from Torah, and Torah is not the word of G-d but the compiliation of stories told between wandering shepherds – superstition, in other words, such as the idea that G-d gave the Law to Moses at Sinai.”
Please note that I’m speaking hypothetically, since I myself absolutely believe that God gave the Law to Moses.
Sure, I suppose that makes sense if one assumes that all halachah comes from Torah. But I don’t know why this Reform Jew (let’s call her Miriam for sake of easy reference) would do that. There’s shedloads of halachah that clearly didn’t come from Torah unless you’re reading back into it (and some not even then - why is it required to get drunk on Purim? Dunno, because Rav says so), and there’s no reason to read those back into Torah unless you’re trying to support the view that there is a straight divine unbroken line between Moses and chazal. Which is clearly not what Miriam believes, as established.
(nb I am a Reform Jew who doesn’t believe in revelation.)