A few years back, a colleague informed me that she thought the New York Get Laws were unconstitutional, dangerously entangling the state in religious affairs. Passed in 1983 and 1992, the laws encourage Jewish husbands to deliver religious divorces (“gets”) to their wives. The laws preclude judges from entertaining a civil divorce suit filed by husbands who fail to “remove all barriers to remarriage”; and, they also allow judges to take the failure to give a get into account when making equitable distribution of marital property. A long-standing activist for Jewish women, I retorted flippantly that “Maybe my colleague was right, but I didn’t care.”
I should have. Theocracies — states who answer to clerics speaking for God and are oblivious to the Rule of Law and basic civil liberties — are dangerous. A recent case is illustrative. Two weeks ago, Israeli Chief Rabbi David Lau ordered Jerusalem undertakers to halt a burial. At the request of the Union of Orthodox Rabbis of America, Lau was trying to force the hand of the deceased’s son. Lau claimed that the man, an American citizen and resident, had been withholding a get for the past 15 years from a woman from whom he had been civilly divorced. After the man’s family agreed to post a bond to guarantee the get, the burial commenced. Immediately afterwards, however, the man announced that he had had no intention of delivering the get. He said that he had already deposited one with an American rabbinic court. Responding, his divorcee, who is also an American citizen and resident, claimed that the man’s designated court was not reputable. She also was not satisfied with the decree of annulment that had been issued at her request by the International Beth Din, located in New York City. She wanted a “more” kosher get, one recognized by the Israeli Rabbinate. Lau agreed.
Much criticism has been levelled at the above events, most aimed at Lau, at Jewish law, and obviously at the get-refuser. Some criticism was even directed at the divorcee. However, no one criticized the elephant in the room: the fact that the democratic state of Israel has entangled itself with religion to such an extent that it has constructed a partial theocracy which violates the civil liberties of its citizens — as well as foreign citizens — without it, or them, even noticing.
Theocracies violate due process.
In the case at hand, the chief rabbi, a state actor who is the apparent head of Israel’s theocratic arm, violated the rights of the deceased and her family to a fair trial. Not only was no trial or investigation conducted before the chief rabbi took action, he did not even summon a response from ANY of the parties involved — not even the woman in whose benefit he claimed to be acting. Not to mention the fact that no law or regulation on the books of the state gives him authority to make any order to allow or deny a burial.
Theocracies do not respect privacy.
Here, the chief rabbi violated the privacy and dignity of the deceased, with impunity, because he could. By disrespecting the body of the deceased, he abused the state’s obligation to preserve the dignity of persons, and abused its limited privilege to exercise violence within its geographic boundaries.
Theocracies confiscate properties.
In the matter under discussion, the chief rabbi interfered with the private contract entered into between the deceased and the Jerusalem Burial Society. Aside from this being a tortious interference with a contract by a third party that would entitle the family to sue the chief rabbi personally for damages, it is tantamount to a state violation of the core civil liberties of persons to own property and contract with other persons and entities.
Theocracies coerce religious behavior.
In this instance, the chief rabbi attempted to coerce the religious activity of a man in a manner that he deemed religiously inappropriate. Though the man argued that he had already done the religious act, and although the woman had already found relief in a private, religious court of her choice, the chief rabbi imposed his religious conscience on all parties involved.
Theocracies do not respect their limited geographical jurisdiction.
Perhaps most appallingly, the chief rabbi did not think that his theocratic realm had any geographic boundaries. He abused his powers as a state actor to infringe on the privacy, property, and religious freedoms of persons who were in no way subject to the state’s jurisdiction. None of the parties are, or were, citizens or residents of the state, nor were they present in the state. Through the abused body of the deceased, the long-arm of the chief rabbi reached across the oceans to coerce their behavior. Such overreaching of state power violates all principles of international law.
Theocracies can also become Vaticans.
By transgressing the boundaries of the state, the chief rabbi has turned himself into the pope of the Jewish religion. As pope, he decides what God’s word is. He gets to decide who is in and who is out of the Jewish people all over the world. This is not a power which the State of Israel has given him.
I still think that the NY Get Laws are constitutional and a legitimate tool of the State of New York to do justice (at the risk of oversimplification, I believe the laws meet the state’s secular goals of marriage and fair allocation of resources). But I know that my support for those laws cannot be justified simply because I think get-refusal is a heinous, vengeful act that needs to be eradicated. There are certain values even greater than eradication of heinous acts — like due process, a fair trial, freedom of religion, privacy, autonomy, dignity, and protection of the individual from a violent state. Today, the chief rabbi as Head of the State Theocracy “merely” violated the dignity of a cadaver. Tomorrow, he could violate the civil liberties of you and me. Unless those values are protected, first and foremost, we have nothing, except perhaps a new Vatican with a new pope.