Marriage, or at least the struggle to escape it, can make for some strange bedfellows.
Consider, for instance, new legislation introduced in the Maryland legislature this week that has been designed to help Jewish women get out of their religious marriages.
The proposed bill raises a welter of constitutional and religious questions. In the process, it has led the ultra-Orthodox community, which is not known as a champion of feminism, to ally itself with the National Organization for Women. And it has put the normally reclusive religious group in the position of asking the government to intervene in its religious affairs.
The bill in question is designed to put pressure on recalcitrant Jewish men who refuse to grant their wives a religious divorce. Ancient Jewish law dictates that a man must grant his wife a document of permission — or get — before she can leave the marriage. Some men refuse, rendering their wives unable to remarry religiously. In endorsing the proposed Maryland law the Orthodox community is acknowledging that it has been unable to solve the problem internally.
“Over the centuries, quite literally, there have been serious efforts to find ways in the context of [Jewish law] to develop more effective mechanisms for husbands not to be recalcitrant and put wives in these painful situations,” said Rabbi Abba Cohen, Washington director of Agudath Israel. “These attempts have been unsuccessful.” Agudath Israel, an umbrella group representing ultra-Orthodox congregations, is leading the push in Maryland.
Under the proposed law, a husband who wants a civil divorce would have to provide an affidavit that he had taken “all steps… to remove all religious barriers to remarriage by the other party.”
The situation of agunot, as the trapped women are known, has received increased attention in recent years. Such women are at a disadvantage, because while a man can receive a rabbinic allowance to remarry without providing a get, a Jewish woman requires one if she is to remarry.
From an Orthodox perspective, several communal insiders said, the root of the problem is that Jewish law was created at a time when rabbis had an ability to punish men for not giving a get. Orthodox leaders say the state needs to step in today because the rabbis no longer have that power.
“Unfortunately the Jewish religious courts in the Diaspora have extremely limited enforcement powers,” said Nathan Diament, director of the Orthodox Union’s Washington office. “If we’re serious about trying to help these women, the way to do that is to get the secular courts to back this up.”
If the law in Maryland passes, it will not be the only such law on the books; New York has had a similar law since 1983. But the bill’s passage in Maryland is far from ensured. A similar law has already been voted down once in the Maryland legislature — in 2000 — and some experts, including the top lawyer at the American Jewish Congress, say that the law in Maryland, like the one in New York, is unconstitutional and thus should be opposed.
“This is designed exclusively to deal with a religious problem, and it conditions a civil benefit — a divorce — on solving a religious problem,” said Marc Stern, general counsel of the AJCongress. “We don’t think you can do that.”
Many Orthodox proponents of the bill assert that it poses no constitutional problems and say they have a letter of support from the assistant attorney general of Maryland.
Laura Shaw Frank, an Orthodox feminist activist and lawyer, said that even with the constitutional questions, the bill is worthy of support. “From my understanding the New York law is probably an unconstitutional law, as well,” said Frank, who is on the board of the Jewish Orthodox Feminist Alliance. “Does JOFA have a problem with that? Our position is that we would like the most effort possible to go into solving the problem, and we will allow the legislative system to determine whether that statute is constitutional.”
According to Agudath Israel, no challenge to the New York law has gone far enough to prompt a judicial ruling.
In recent years, the Modern Orthodox community has taken significant steps to address the issue by encouraging couples to sign a rabbinically approved prenuptial agreement that extracts a significant financial toll on any husband who refuses to grant a get. Ultra-Orthodox rabbis, however, have frowned upon this solution.
Maryland — or, more specifically, Baltimore — has a large and influential Orthodox community, and the push for the law came after a number of women came forward publicly to describe their plight. The leading voice was Cynthia Ohana, who left her husband three years ago because of abuse but was never able to force him to grant her a get. The Baltimore Jewish community has put pressure on the husband — barring him from synagogue — but he has not budged, rendering Ohana unable to remarry or even date within the Jewish community.
The state delegate and state senator who represent the Baltimore neighborhood where the Orthodox community is centered are introducing the bill. Lisa Gladden, the senator, said she believes that the bill “is an appropriate response to my constituents — I’m a responsive legislator.”
Gladden was around the last time the bill came up, in 2000, and she believes that this time it stands a much better chance of passing. Last time, Gladden said, the measure was defeated because there was a Jewish legislator who “believed it was an inappropriate commingling of church and state. He’s not here anymore.”
The current bill has the support of a broad array of Jewish groups, including the nondenominational Baltimore Jewish Council. The Jewish proponents have secured a letter from Maryland’s assistant attorney general, stating that “although the proposed legislation presents a substantial issue under the Establishment Clause of the First Amendment, it would likely be upheld if challenged.”
David Conn, deputy director of the council, said that the bill is constitutional because the civil divorce courts would not have to deal at all with the specifics of Jewish law. Moreover, Conn said that the current problem prevents a couple from having an equitable civil divorce as the state guarantees.
“When one person purposely subverts the nature of the civil divorce courts, that’s an issue where the state should have a concern, as well,” Conn said.
The AJCongress’s Stern acknowledges the potential good that the law could do for Jewish women, but he said that the bill does too much to damage the principle of separation between church and state. “Here, the principle goes to the core of Jewish internal autonomy in the U.S.,” Stern said. “It’s a very bad idea to invite government in involuntarily.”
Efforts to legislate this issue have also been controversial within the context of religious law. At the center of Jewish divorce law is the principle that a man cannot be coerced into providing a get. Orthodox rabbis have agreed that the proposed legislation would not amount to coercion. It would also allow a man to avoid providing a get if he did not want a civil marriage.
For the advocates of Orthodox women, the bill is a good start in confronting the issue of agunot, but they hope for much more within the Jewish community. “If this is going to be the end of attention to the problem, we would be very disappointed,” said Frank, the JOFA board member.