This is an interesting article from Susan Weiss about using secular tort law to "solve" the Aguna problem. It shows the inherent conflict between secular and religious thought in this matter. "Susan Weiss is the founder and executive director of the Center for Women’s Justice and a doctoral candidate at Tel Aviv University in sociology and anthropology. She initiated the tort cases described in this paper."
The following are the last two pages. Click the link to read the whole thing.
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Dialogues:
Calling get-refusal a tort provokes a direct confrontation between religious values and modern ones. Get-refusal is about male dominion over women. Equal power to sue for divorce is about liberty, autonomy, and equality for women. It is a modern notion. The tort of get-refusal forces the rabbinical court to confront modernity and to conduct a dialogue, whether they want to or not, with women..
It was, and remains, the hope of Israeli cause lawyers that this dialogue and confrontation would yield a transformative response from the rabbinic court and religious communities that will untie the knots between gender, equality, and Jewish divorce law.
Various transformative response are imaginable, some more radical than other, all of which are
possible: (1) The rabbinic courts could embrace the tort of get-refusal as a way to help
them resolve difficult cases. Theoretically at least, the rabbis could encourage women to
sue for damages in the civil court as a way of warning husbands against recalcitrance. (2)
Rabbinic leaders might be encouraged to find internal systemic halakhic solutions to the
problem of religious divorce; (3) Alternative Israeli Orthodox rabbis could break with
existing rabbinic judges to form more modern rabbinic courts; and (4) An increasing rift
may develop between the secular and religious courts that would pave the way for the
legislation of secular marriage and divorce in Israel..
Rabbinic Supreme Court Responds to Tort Claims: March 11, 2008:
Despite the effectiveness of the tort law in solving long-standing cases in the rabbinic court (not to mention doing justice), the Israeli rabbinic courts have not embraced tort as a solution, or as a way of ameliorating, the problem of get-refusal. On the contrary. As more and more women have been suing for damages for get-refusal, the rabbinic court has been expressing more and more opposition to those cases on religious grounds, arguing that these case violate the rule against the forced divorce (get meuseh). The rabbis claim that husbands who give the get after they’ve been sued in tort, are not giving the divorce freely, but in response to the tort cases.
On March 11, 2008, the Supreme Rabbinic Court (file 7041-21-1)issued a 26 page decision (all obiter dictum) in which it held as follows:
All petitions filed outside the rabbinic court – like petitions to civil courts for damages — that relate to get refusal, whose practical consequence is to acceleratethe delivery of the get, are an interference with the laws of the Torah regardingdivorce, and effectively preclude the possibility of the execution of a [kosher] get…
Attorneys who deal in family law should be advised to weigh carefully their recommendations to clients to file damage claims in the family court for getrefusal. Such recommendations are tantamount to malpractice, and I doubt that attorneys could avoid such claims [of malpractice], even it if they were to sign their clients on waivers to that affect. It can be assumed that clients are not aware, and cannot possibly foresee, what serious consequences and delays can occur inthe delivery of the get , even after the husband has agreed to give the get, if the husband's agreement [to give the get] was given subsequent to a petition for damages for get-refusal (J. Algrabli).
In short, the rabbinic court declared in no uncertain terms that it would not yield to outside attempts to reform its failings and wielded, once again, the immutable rule against the "forced divorce"(get meuseh), thus re-winding the knot of religion that had for a moment loosened.
In Conclusion
The tort of get-refusal is delineating, distinguishing, demystifying; and defrocking the knots that bind gender, equality, and Jewish divorce law. The tort has prompted an important dialogue in the Israeli courts between modernity and tradition, between liberal principles and religious values. It remains to be seen how that dialogue will play itself out and if the knots that bind Israeli Jewish women unremittingly to their husbands will somehow be undone. It could be that women will lose patience in their attempt to unravel these knots and will simply cut them in order to escape entanglement
This is a most ridiculous suggestion. It is basic American tort law that to be liable in tort you have to breach a duty of care to someone else. In this case, imposing tort liability means that you are saying there is an obligation on the husband in secular law to give a get. That is contrary to both the Torah and the First Amendment.
ReplyDeleteSo if someone finds themselves, by some combination of circumstance and no fault of yours necessarily, chained up, and you alone have the key to release them and for sure are able to do so without any real cost to yourself and for sure know about their plight, then if you let them languish for a year before they manage to get free, can they sue you for wronging them via your neglect? One would think so, that you have such an obligation even though you never agreed to supervise them. And how is the case of aguna different? If you say because it's a matter of religion, well, why not just view it as a de facto contractual obligation made upon marriage, with expectations by each party of the other that they will keep their side of the contract, and involving the woman requiring the get?
ReplyDeleteSome woman tried this in canada a few years ago, won in lower court, and lost in appellate court.
ReplyDeleteUnless you have a duty to help them, the answer is no, they cannot sue you. Such a duty would be imposed on a parent-child relationship, but not a passer-by. There is no basis to impose such a duty on a husband-wife situation.
ReplyDeleteAs for contract, the answer is that the wife voluntarily entered into a religious marriage, where the religion gives control of ending the marriage to the husband (or to God if the husband dies). There is no "expectation" that the husband will grant a get in any particular circumstance, that is a fanciful wish. The expectation is that the husband will follow halakha, which in all but rare cases gives him the decision as to what to do.
As someone once wrote the NY Times, a woman who obtained a secular divorce is not married in the eyes of secular law. She is free. Her complaint is that she wants to follow a religion that considers he still married and requires a religious ceremony to free her.. That is something that needs to be resolved in the context of her religion, not secular law.
And, IMO, allowing secular law to determine that one's exercise of religious prerogatives is "tortious" (which means "wrongful actions causing damage") would be a serious violation of both Free Exercise and Establishment Clauses. Suppose a religion believes that divorce should only be granted in cases of adultery (as did Beis Shammai and, lehavdil, some Protestant sects). Should a secular court decide that withholding a divorce is tortious? Or that Catholic doctrine that bars divorce totally is tortious? The First Amendment does not allow secular courts to go there.
Of course, from the POV of Torah, this proposal would make it impossible to give a valid get. If secular courts accepted this theory, then every get would be given under the threat of a secular court imposing monetary sanctions for the husband's failure to give a get, and would be a get meuseh.
ReplyDeleteWhich then, paradoxically, would free the husband from liability, since he cannot be forced to do something impossible. (I think there was a case like that once where a secular judge ordered a get to be given, and then the beis din said that given his order, a get was impossible and they would not process it. He had to rescind his order, since you cannot order someone to do something impossible.)
And BTW, if you are going to invoke an implied contract, if anything the implication when Orthodox people marry is that they will follow halakha. Halakha is very clear that private disputes must be brought to a beis din, not a secular court. That is from the first possuk in Mishpatim. So if you want to impose an implied contract on anyone, you should force the husband and wife to bring all of their divorce disputes, incuding all monetary issues, to a beis din and not a secular court, as the Torah requires.
ReplyDeleteI always found this part very hypocritcal on the part of some feminists. They want to avail themselves of secular courts for their divorce proceedings, itself a violation of the Torah (and in many cases, be awarded money they are not entitled to under halakha, which makes them gazlanim) but then demand that a beis din force the husband to grant them a get.
Thank you for your reasoned reply, but you'll have to pardon my skepticism; this reasoning feels rather tortuous itself...and suspect.
ReplyDelete(1) I can't really believe that secular law would differ from Rava's case (brought misevara, lekhora) in BM 2nd Pereq (sorry I forget the daf, but it's in "Eillu metziyus") of "mayim sheshotfim verayim...chaiyiv"--i.e., that a passerby must help prevent catastrophic loss to his neighbor when at no danger or serious cost to himself. In other words, that passersby aren't obligated to call 911 when they see a house burning in some random neighborhood. It's been my experience that lawyers tend to cite a great deal with much authority & even bravado simply on the basis of their own lack of knowlege, ironically, so unless you have some precedent, one would think that in the eyes of common law he does have an obligation to dispense to her the freedom that his will alone can remand.
(2) Re Free Establishment etc., that seems like an awfully false analogy. His religion does not compel him to keep her chained. That's the whole point; that he can freely let her go and withholds doing so only on whim or as blackmail. To call that free exercise of religion is pure casuistry, tantamount to deeming phenomena like harassment or stalking 1st&5th-Amendment-protected as "free speech" or "free movement," respectively. (While some rather significant burden of presumption is involved, clearly the law makes allowance for such categories as these (i.e., those underlined).) So here both the court & the beis din would be in concord to encourage him to do what only he can do freely and, if not to punish him for recalcitrance, then to compensate her the damage his willful recalcitrance has wrought upon her.
(3) The point about a contractually implied arbitration agreement is interesting, but I'll leave it aside. Is a larger discussion and hardly decisive, seeing as it can be answered in a number of ways.
(4) Regarding your point in another comment re gezeila, check with a poseq>/i>, but I'm pretty sure that's not the halakha. We see a few places in Neziqqin that where someone is rightly owed something (i.e., midei shamaiyim) and it's the kind of property that for whatever reason beis din will not adjudicate upon, the rightful owner is halakhically permitted surreptitiously & even brazenly to grab where he can without any nezeiq. Could be that I'm overapplying it to this case, but, as I said, check it out; is probably not so simple as you say.
No, it's hard to believe that this Separation of Powers stuff applies. The real issue is the degree to which the use of secular court leverages him sufficiently to pasul the get as me'usa, and presumably it does if the beis din has not already put a seruv against him.
It's a ridiculous argument. No one forces the woman to remain religious. She is free to leave the faith if she so desires and marry as she pleases. She might as well sue herself for damages for remaining in a religion that requires her to have a get.
ReplyDeleteIn fact, the spuriousness of the argument above, which held that the matter to be purely religious -
ReplyDelete"[A] woman who obtain[s] a secular divorce is not married in the eyes of secular law. She is free. Her complaint [...] that she wants to follow a religion that considers [her] still married and requires a religious ceremony to free her [...] is something that needs to be resolved in the context of her religion, not secular law"
- is evident from the fact that the same reasoning could be applied to argue as follows, clearly falsely:
Reuven knowingly and maliciously spreads a rumor, with no small success, that Shimon's yichus renders him a mamzer, provably causing Shimon tremendous damage (broken engagements, loss of previously plentiful shidduch suggestions, etc.) Now, "in the eyes of the law," as TOBL put it, mamzerus doesn't even exist, and so this would be, according to him, a slander "that need[ed] to be resolved in the context of [...]religio[us], not secular, law." But clearly that's ridiculous. Slander is slander, and, if established, would render the wrongdoer liable for any & all damage arising therefrom, as with any tort.
Similarly, if a slanderous rumor cost someone their job, the courts do not reply that the victim's holding that job is a purely personal decision that he need not have had anyway -- as if only damages proper (violence, vandalism, etc.) and not loss of careerist objectives were under the purview of the law. Social, like financial, realities do exist in the eyes of the law, and religion is a social reality. This notion that Constitutional separation of religion/State should somehow circumscribe religious phenomena into non-existence is a bizarre (albeit regrettably common) fallacious development running rampant in current thought. We should be wary of buying into it.