The Volokh Conspiracy - Refusal to Give Religious Divorce and the Secular Legal System:

From 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.

	[Eugene Volokh, May 29, 2007 at 5:29pm] Trackbacks Refusal to Give Religious Divorce and the Secular Legal System: From 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.