If the First Amendment means anything, it means that one may not coerce religious practice. The state may not compel someone to pray, or to fast during Ramadan, or to get married in a church. “My sense is that giving a get is a religious practice. Since marriage has religious significance in Judaism, terminating the religious marriage does too.” But is this the final word?
In Slate, Mark Oppenheimer writes about the Friedman - Epstein divorce and congressional staffer Aharon Friedman's refusal to give his civilly divorced wife a get, religious divorce. Oppenheimer asked Eugene Volokh, an expert in First Amendment law, whether Congressman Dave Camp, Aharon Friedman's employer, could legally fire Friedman because of his get refusal:
…First, the Supreme Court has held that if the First Amendment means anything, it means that one may not coerce religious practice. The state may not compel someone to pray, or to fast during Ramadan, or to get married in a church. “My sense is that giving a get is a religious practice,” Volokh said. “Since marriage has religious significance in Judaism, terminating the religious marriage does too.”
The Supreme Court has put some limits on First Amendment religious rights. For example , in the 1986 case Goldman v. Weinberger, the Supreme Court ruled that the Air Force’s interest in having soldiers wear standardized uniforms meant it could prohibit Jews from wearing kippot, skullcaps, even though the head covering is considered a religious duty. But there is a difference, Volokh said, between the government curtailing someone’s religious freedom and coercing him to commit a religious act, like issuing a get.
If Camp were to insist that Friedman give Epstein a get, and demote or fire him if he refused, Friedman could also make a claim under Title VII of the 1964 Civil Rights Act, which protects against religious discrimination. Because Congressmen don’t generally intrude on their employees’ divorces, singling out an Orthodox Jew for that kind of meddling is probably unlawful discrimination, Volokh said.…
I think Volokh is almost – but not quite – correct.
A marriage is different from any of the examples he gave, because the marriage, although religious in nature, was performed with state sanction. The state allows the rabbi to perform the wedding, vesting its power in him to do so. But it requires the marriage to be registered with the state, and it mandates that the couple buy a marriage license before the wedding. A rabbi who performs a marriage without registering it, without the couple having that marriage license, has violated the law.
This takes religious marriage out of the purely religious realm.
And that might give Camp grounds to fire Friedman.
But as I've written previously, I don't think this type of enforcement of religious doctrine by the state or by a private business is a good thing, and should not be encouraged – despite a certain rabbi's self-serving cockamamie pronouncements in support of it.
But my point about religious marriage being removed from the purely religious realm by the state's requirements of registration, purchasing a marriage license and its requirement that its laws be followed – for example, a rabbi cannot marry two people, one of whom has never been married and one of whom has a get but not a civil divorce – is important.
The state requires that a couple married by clergy get a civil divorce if they later choose to end the marriage. It takes no position on what, if anything, must be done on the religious side to end the marriage just at it takes no position on what, if anything, must be done on the religious side to consecrate the marriage. It doesn't care if a religion accepts civil marriage as binding in and of itself or if it requires its own ceremony, like Orthodox Judaism does.
In the eyes of the state, Friedman and Epstein are divorced. He has no control over her life in its eyes and she has no control over his.
But what the state does not envision is that a marriage it dissolves might still be considered whole by the religion, and that this bifurcated situation may continue to exist for years or even decades.
The state never intended that the permission it gave to a rabbi to marry Friedman and Epstein (remember, the rabbi cannot marry anyone without the permission of the state; any marriage done illicitly is not recognized and the rabbi has, I believe, violated the law) could be used to extort and/or torture one of its citizens.
The state could eliminate this misuse of its permission to marry by mandating that couples seeking to divorce within its borders must conclude any religious divorce needed within a set period of time, and until that is done, any civil divorce would not be final. Any party refusing to grant the necessary religious divorce within the mandated time frame could be sanctioned and fined, and communal property and child custody could be awarded to the legally compliant spouse on a permanent basis. Bank accounts could be frozen or restricted and property could be embargoed from sale, transfer, barter or rent. And all of these penalties could go into effect before the time period for granting the religious divorce has expired.
In effect, both parties would be chained in many ways, and behaving like Aharon Friedman would become much harder to do.
Ultimately, no matter what the state does, halakha will have to find a way to adapt to modernity to completely prevent behavior like Friedman's from happening.
The way for that to happen is for the state to regulate religious divorce the way it now regulates religious marriage.
Rabbis don't like to cede their power – or their impotence disguised as power – to the state.
And when faced with the state about to rip control of religious divorce from their hands, the rabbis may finally find the will to do what they should have done decades ago, and write the modern institution of agunah out of halakha.
[Hat Tip: C-G.]