Rescue Agunot, But in the Right Way

Rabbi Shlomo Riskin argued eloquently several weeks ago that the Torah compels Jewish religious leaders to innovate in order to alleviate the suffering of agunot.   A few days later, Israeli agunot marched to call attention to their plight.

The rabbi declared that the portion Yitro recounts how G-d gave the Ten Commandments in thunder and lightning at Mount Sinai, but He revealed the detailed laws of Mishpatim  in a more prosaic setting.  Riskin explained the difference: while humans may not change the fundamental laws, the rules of daily life fall into a different category. He quoted Maimonides to the effect that the latter must rest on empathy and compassion. In particular, Rabbi Riskin said that, although the Torah allows masters to mistreat their gentile slaves, Maimonides required that Jewish masters afford them respect. He forbade what the Torah permitted. Rabbi Riskin appealed for a similar humane approach to agunot.

Rabbi Riskin is right. The situation that exists in Israel is deplorable. In the US, the agunah crisis has become even more dire. In Israel, the Rabbinate controls the divorce courts and the State punishes recalcitrant husbands even with jail-time.

In contrast,  the civil authorities control US courts and, under the First Amendment to the Constitution, must disregard religious doctrine. Courts grant divorces which should allow both parties to remarry, but Jewish women require, in addition, their spouses’ consent to a get’. Secular courts cannot do anything directly against husbands who refuse to petition a beit din for a religious divorce. .

Jewish authorities in the US have seen the need, but so far, have focused on the wrong solutions.  Policymakers have tried either using the civil courts to circumvent the separation of religion and state, or acting through halacha and the process of the beit din.

The legal approach violates the Constitution. This month, the Maryland legislature has under review a  bill that would use secular courts to unchain agunot by allowing divorce only if both spouses can remarry. .

Maryland copied New York State, which has tried to resolve the agunah problem through its Domestic Relations Law.

The New York law requires, only in cases in which a couple married under religious (or Ethical Culture) auspices, that the clergyman who officiated at the marriage certify that the plaintiff (in contested cases) or both parties (in consensual divorces) have taken or will take all steps “to remove any barrier to remarriage.”  The phrase “any barrier” refers to a get. The provision does not cover the hard-core cases, in which the wife wants to dissolve the marriage and the husband does not. Worse, the law gives rabbis civil powers. Even if the law made the parties certify, courts would have to decide halachic questions of religious barriers.

The Domestic Relations Law copies the old New York kosher laws, which the courts found unconstitutional.  Under the guise of consumer protection against fraud, New York appointed kashrut inspectors. They decided whether or not particular “kosher” food met the standard and, therefore, the legal definition  of false advertising. The US Court of Appeals for the Second Circuit held the New York law invalid. The court found that allowing civil officers to decide religious questions constituted “excessive entanglement” of government in religion. Commack Self-Service Kosher Meats v. Weiss, 294 F.3d 415 (2d Cir. 2002)  Though the kashrut law specified Orthodox kashrut law, while the Domestic Relations Law covers even Ethical Culture, the same violation occurs when the issue involves gittin.

The Orthodox Union’s Beit Din of America has adopted the second  approach. The OU suggested a prenuptial agreement under which the groom agrees to arbitration before that rabbinical court in case of marital discord. The Beit Din of America rules whether he should give the wife the get and decides financial support.,  If the husband acts reasonably, the parties do not need the agreement. If the husband misbehaves, a court would need to enforce the arbitration.

Courts generally enforce arbitrators’ ruling, but not those obtained through fraud or decisions that produce unconscionable results. The Beit Din of America’s would have issued a halachic decision.  Review for unconscionability would necessitate getting in the middle of religious doctrinal disputes.

That leaves the Din Torah as the only feasible way to proceed. Left wing Orthodox rabbis in the US and at least three rabbinical courts in Israel, one under the auspices of the Chief Rabbinate, have annulled marriages on the basis of “mistaken transaction” or what the law calls fraud in the inducement of a contract.  In plain language: had the woman full knowledge of her groom at her wedding she would not have married him. Now that she has found out whatever led her to divorce, the marriage loses its validity retroactively.

Unless kept narrow in scope, this approach carries the risk of undoing altogether the need for a get. Moreover, fraud in the inducement does not equate to “buyer’s remorse.” In New York State, obtaining consent to marriage through fraud as a grounds for annulment operates within a statute of limitations.  Other grounds allow for waivers through later conduct.  Here, too, “mistaken transaction” must have its limits.

Rabbis should focus more on the rules of procedure and evidence in batei din and creating presumptions indineiTorah.  For example, the Mishna in Ediyot recounts that the rabbis accepted the testimony of one witness, rather than the biblically required two, that a missing person died, so that the wife could remarry. Ediyot 6: 1. Similarly, the rabbis could create presumptions that certain conduct by the husband in relation to the civil proceedings implies consent for a get, .just as a country waives sovereign immunity by appearing in court.

Rabbis should not shun creativity; only they must direct it wisely.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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