Your December 10 article “Big Love, Jewish-Style: One Divorce, Two Marriages, Lots of Questions” quotes me incompletely and hence the result is somewhat misleading.
I believe that it is unconstitutional 1) to compel a clergyman to serve as an officer of the state when he does not wish to do so, 2) to prohibit an ordained clergyman from performing an act that a layman may perform with impunity, and 3) to restrict any person from reciting prayers or blessings.
In that context, I indicated that I had, at one time, offered to perform a marriage between two single persons in a situation in which the sole legal impediment was the absence of a marriage license. I was prepared to do so only with advance notice to the local district attorney inviting prosecution. That is the only manner in which the constitutionality of the relevant provisions of the New York Domestic Relations Act can be challenged.
I further made it clear that the state may have a greater interest in preventing a marriage it regards as bigamous then in preventing mere consensual intimacy between adults who enjoy legal capacity to marry — although it is certainly arguable that such a distinction is without constitutional difference.
Moreover, in the case described in your article, even if a civil divorce had been obtained, I could not in good conscience officiate at a remarriage. I am on record as maintaining that the so-called “New York Get Law” serves to cast a cloud over the validity of all religious divorces executed by persons domiciled in New York State. The law’s prescribed penalties for failure to cooperate in executing a religious divorce generate financial duress that compromises the free will that is required under Jewish law. Accordingly, I decline to officiate at the remarriage of any individual divorced subsequent to enactment of that statute, even when a valid civil divorce has been issued.
Finally, I would like to correct an error of fact in the article: Neither husband nor wife “signs” a religious divorce. The instrument is signed by attesting witnesses, and a formal document that each of the parties has halachic capacity to contract a new marriage is issued by the presiding beit din.
Rabbi J. David Bleich
New York, N.Y.