Posted by Eugene Volokh:
Refusal to Give Religious Divorce and the Secular Legal System:
http://volokh.com/archives/archive_2007_05_27-2007_06_02.shtml#1180474184
From [1]the Canadian Press, Jan. 25, 2007 (via Daniel Pipes and David
Bernstein):
The Crown says a Montreal man's refusal to grant his Muslim wife a
Shariah divorce should be considered an aggravating factor when he
is sentenced Friday for stabbing her and their baby daughter....
The Crown has asked for a seven-year sentence, citing the refusal
to grant the Shariah divorce as an aggravating factor.
Of course, a secular Canadian divorce is all that's needed for secular
purposes, in Canada and in other non-Muslim countries. But the article
suggests that without a religious divorce, the wife might still be
seen as married in some Muslim countries; and my sense (though please
correct me if I'm mistaken) is that she might also be seen as married
by the Muslim community, so that, for instance, there would be social
pressure against her remarrying.
Should such extra punishment for failure to perform a religious
ceremony be permitted? Or does it improperly coerce religious
behavior? In the U.S., similar questions have arisen with regard to
"Get laws," though these are special civil laws limiting access to
divorce rather than enhanced criminal punishments.
Under Jewish law, at least as understood by many Jews, a civil divorce
decree isn�t enough to terminate the marriage from a religious
standpoint -- unless the husband gives the wife a bill of divorce,
called a Get (pronounced just like the word �get�), she may not
remarry. If she civilly remarries before receiving a Get, her sexual
relations with her new husband are seen as adulterous, notwithstanding
her civil divorce; also, any children born of such a civil remarriage
are treated as illegitimate, and may not marry freely within the
Jewish community. A recalcitrant wife may cause somewhat similar
problems for the divorcing husband if she refuses to accept the Get.
Of course, all these impairments are purely a matter of Jewish law;
American secular law does not at all enforce them. Nonetheless, they
are taken seriously by many observant Jews, and women who have been
refused Gittin and the smaller group of men whose ex-wives have
refused to accept Gittin are put in a difficult position. The ability
to impose this position can also give a spouse substantial leverage to
try to negotiate a more favorable settlement as a condition of giving
(or receiving) the Get.
The Get laws are the attempts of a few states to deal with this
problem; here, for instance, is New York Domestic Relations Law §
253:
3. No final judgment of annulment or divorce shall thereafter be
entered unless the plaintiff shall have filed and served a sworn
statement:
(i) that, to the best of his or her knowledge, he or she has, prior
to the entry of such final judgment, taken all steps solely within
his or her power to remove all barriers to the defendant�s
remarriage following the annulment or divorce; or
(ii) that the defendant has waived in writing the requirements of
this subdivision....
6.... �[B]arrier to remarriage� includes, without limitation, any
religious or conscientious restraint or inhibition, of which the
party required to make the verified statement is aware, that is
imposed on a party to a marriage, under the principles held by the
clergyman or minister who has solemnized the marriage, by reason of
the other party�s commission or withholding of any voluntary
act....
7. No final judgment of annulment or divorce shall be entered,
notwithstanding the filing of the plaintiff�s sworn statement
prescribed by this section, if the clergyman or minister who has
solemnized the marriage certifies, in a sworn statement, that he or
she has solemnized the marriage and that, to his or her knowledge,
the plaintiff has failed to take all steps solely within his or her
power to remove all barriers to the defendant�s remarriage
following the annulment or divorce, provided that the said
clergyman or minister is alive and available and competent to
testify at the time when final judgment would be entered....
9. Nothing in this section shall be construed to authorize any
court to inquire into or determine any ecclesiastical or religious
issue....
My sense is that the Get laws, as well as enhanced criminal
punishments for refusing to give a religious divorce (whether Jewish,
Islamic, or otherwise), would (in the U.S.) generally violate the
First Amendment, because they would indeed impermissibly coerce the
performance of a religious act. It's true that the religious act has
important social effects among members of that religion, and that
refusing to give it could be used as a bargaining chip in property
settlement or child custody negotiations. But it seems to me that
these social effects within the religious community, whether as a
result of the performance or nonperformance of religious acts (whether
divorce, excommunication, refusal to baptize, or whatever else), or
for that matter as a result of practices such as shunning, must be
beyond the scope of civil law. (The argument about shunning is subtly
different from the others, but they're related, and the others all
focus on the principle that the Establishment Clause bars the
government from coercing the performance of a religious act.) Compare
Megibow v. Megibow, 612 N.Y.S.2d 758 (1994) (ordering husband to give
get, and not discussing the First Amendment question) with Aflalo v.
Aflalo, 295 N.J. Super. 527 (1996) (holding that such an order would
violate the First Amendment). See generally Lisa Zornberg, Beyond the
Constitution: Is the New York Get Legislation Good Law?, 15 Pace L.
Rev. 703 (1995).
Note, though, the twist in this case: It sounds like the refusal to
give a religious divorce has not only a social effect within a
religious community, but also has foreign legal ramifications. Might
that justify legal pressure to give a divorce, on the theory that what
is being required is an act with independent legal significance? Or
should the religious nature of the act categorically foreclose the
government (at least if the case happened in the U.S.) from mandating
the act?
Finally, note that the matter may well be different if the parties had
entered into a civil contract to perform a religious act (whether to
give a divorce, to raise the children in some religion, or whatever
else). The Canadian Press article notes one such case that was pending
in January before the Canadian Supreme Court. ("The divorce agreement
stipulated that [the husband] agree to the ghet -- something he did
not do [for 15 years after the divorce]. [The wife], who now lives in
New York, was awarded $47,500 because she couldn't marry or have
children in the interim, but that judgment was overturned by the
provincial appeals court.")
In any case, an interesting set of controversies -- and a reminder
that a lot of the legal controversies in Western countries involving
Muslim religious practices are, as a legal matter, closely connected
with other controversies involving the practices of other religious
groups.
References
1.
http://www.canada.com/montrealgazette/news/story.html?id=2691bd38-5189-4888-864f-5c7f543bbf89&k=86356
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