Tag Archives: Family Law

More on That Jewish Divorce Case in New Jersey

A couple of weeks ago, I posted about the FBI’s arrest of two rabbis who allegedly orchestrated the kidnapping and torture of dozens of men in New Jersey. The rabbis allegedly did this in order to force the men to consent to their wives’ requests for divorce under Jewish law. Under Jewish law, a woman cannot unilaterally divorce her husband; the husband must give permission, or a get. If he refusesthe wife becomes a chained woman, or agunah, who cannot remarry.

The women in these cases were apparently desperate for Jewish divorces and took extreme measures to obtain them. They allegedly paid the rabbis tens of thousands of dollars to convene Jewish law tribunals and issue decrees allowing violence against the recalcitrant husbands. The rabbis then allegedly arranged for thugs to torture the husbands until the husbands granted the gets. This conduct would obviously be criminal under US law and the rabbis will not be able to escape punishment by arguing that their religion authorized what they did.

I expressed doubt in my post that ordering violence against a recalcitrant husband would be consistent with Jewish law. It turns out that I may have spoken too soon. My friend Michael Helfand  at Pepperdine University, an expert in Jewish law and occasional guest here at CLR Forum, explains in the The Forward that “the use of violent sanction in these circumstances has been a feature of Jewish family law for millennia.” Under traditional Jewish law, he writes, if a husband refused to comply with a tribunal’s judgment and give his wife a get,

the rabbinical court could authorize the use of violent force against the husband. While divorces [could not] be executed under duress, it was simply unimaginable that a husband would so cruelly leave his wife trapped in a nonfunctional marriage. Thus, force simply served as a vehicle to free the husband’s inner desire to do the right thing and grant his wife a divorce.

Michael doesn’t advocate this practice, I hasten to add, and he notes that the strong implication of bribery would likely invalidate the religious decrees in the New Jersey cases. In fact, Michael advocates a very American fix for the problem of agunot–a prenuptial agreement. (Michael wrote about the topic here at CLR Forum back in March). The Beth Din of America, a major Jewish law tribunal in the US, has adopted a model prenup “that requires a husband to provide his wife with a daily support payment, typically $150, for each day the two no longer live together and the husband still refuses to grant his wife a religious divorce.”

The prenup is not a panacea. A wealthy husband could make the payments and refuse to give a get, and a wife without such a prenup wouldn’t benefit at all. But the prenup might help some agunot, and wouldn’t require kidnapping one’s husband and torturing him. It’s like they used to tell us in law school: In America, when the going gets tough, the tough contract out. 

Tarabey, “Family Law in Lebanon”

9781780765624Next month, Macmillan will publish Family Law in Lebanon: Marriage and Divorce Among the Druze by Lubna Tarabey (American University of Beirut). The publisher’s description follows.

Much of the life and ritual of the Druze in Lebanon appears mysterious to outsiders, as this esoteric sect remains closed to non-members. Lubna Tarabey, herself a member of this secretive community, is ideally-placed to offer insight into the family life, tradition and religious practices of the Druze. She reaches back to the 1970s, and the start of a civil war that shattered Lebanon along confessional lines, to explore how the substantial social and political changes that have shaken the country have affected marriage and divorce practices. Through extensive research, she approaches a complex web of change and continuity, of traditional values competing with enhanced individualism and personal freedoms. In Lebanon, family law falls under the authority of its religious courts, and Tarabey traces the ways in which social and legal developments have impacted family law and the internal cohesion of the Druze.

Giunchi, “Adjudicating Family Law in Muslim Courts”

9780415811859Next month, Routledge will publish Adjudicating Family Law in Muslim Courts by Elisa Giunchi (University of Milan). The publisher’s description follows.

While there are many books on Islamic family law, the literature on its enforcement is scarce. This book focuses on how Islamic family law is interpreted and applied by judges in a range of Muslim countries – Sunni and Shi’a, as well as Arab and non-Arab. It thereby aids the understanding of shari’a law in practice in a number of different cultural and political settings. It shows how the existence of differing views of what shari’a is, as well as the presence of a vast body of legal material which judges can refer to, make it possible for courts to interpret Islamic law in creative and innovative ways.

Larson, et al. (eds.), “Gender and Equality in Muslim Family Law”

Next month, I.B. Tauris Publishers will publish Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Process edited by Lena Larsen, Ziba Mir-Hosseini, Christian Moe and Kari Vogt.  The publisher’s description follows.

This book examines how male authority is sustained through law and court practice, the consequences for women and the family, and the demands made by Muslim women’s groups. Examining the construction of male guardianship (qiwama, wilaya) in the Islamic tradition, it also seeks to create an argument for women’s full equality before the law. Bringing together renowned Muslim scholars and experts, anthropologists who have carried out fieldwork in family courts, and human rights and women’s rights activists from different parts of the Muslim world, from Morocco to Egypt and Iran, this book develops a framework for rethinking Islamic Law and its traditions in ways that reflect contemporary realities and understandings of justice and gender rights.

Quraishi-Landes on What American Judges Do with Islamic Family Law in Their Courtrooms

Asifa Quraishi-Landes (U. of Wisconsin Law School) has posted Rumors of the Sharia Threat Are Greatly Exaggerated: What American Judges Really Do with Islamic Family Law in Their Courtrooms. The abstract follows.

American rule of law has always considered issues of accommodations of religious minorities seeking to follow rules that differ from American secular legal norms. In other words, Sharia is by no means the first religious law to be presented in American courts. Two centuries of case law involving religious-based requests from American Catholics, Jews, Mormons, Native Americans, and others has resulted in several established policies and practices that American judges use to adjudicate requests for consideration of religious law. In short, requests for consideration of religious law are balanced with constitutional and legislative principles, using judicial tools such as comity, public policy, and unconscionability. Because many Americans are unaware of this established practice, the anti-Sharia campaign has been able to create a concern that judicial consideration of Sharia-based claims from Muslim American litigants is compromising American law and values. The case law, however, shows a different picture. Judicial treatment of Sharia requests is not threatening the American rule of law, it is an illustration of it. As with requests from other American religious groups, sometimes Sharia requests win, and sometimes they don’t. Reasonable minds differ over whether the courts get it right each time. But in every case, the job of the judge is a careful balancing of rights against each other, not an automatic trumping of religious practice by secular law or vice versa.

The campaign to ban Sharia in the United States appears to be directed at two different alleged threats: (1) that Sharia will take over American law, and (2) that judicial accommodation of Muslim religious practices is eroding our secular rule of law. The first is a non-issue: there is no real chance that Sharia will replace American law or our Constitution. But the second is worth talking about. It asks a question crucial to the nature of our secular constitutional democracy: Can we legally accommodate a diversity of religious legal practices among our citizens and, if so, with what limits? I will address one aspect of this question by summarizing in Part II how Islamic family law is currently accommodated in American courtrooms today and discussing in Part III why this does not threaten women’s rights or our American rule of law. In Part IV, I consider the global and domestic implications of Muslim American tribunals serving the dispute resolution needs of American Muslims. Part V concludes.

Ahmed & Norton on Religious Tribunals in the United Kingdom

Farrah Ahmed (University of Oxford, Melbourne Law School) and Jane Calderwood Norton (University of Birmingham School of Law) have posted Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women.  The abstract follows.

For the most part current UK law does not interfere with the operation of religious tribunals. The role of religious tribunals in family matters in the United Kingdom is, however, fiercely debated. While many considerations are at play in these debates, two are often set up against each other. Religious freedom is often given, on the one hand, as a reason not to interfere with religious tribunals. On the other hand, however, concern for the vulnerable – especially women in religious groups – is thought to weigh in favour of greater interference. This article evaluates the current legal response to religious tribunals in the UK in the context of family matters against these two key values. It also clarifies and expands on how religious tribunals can both harm and enhance these values. It finds that contrary to the way the debate is often presented, religious tribunals can harm religious freedom while, at the same time, they can also enhance the welfare of vulnerable persons.

CLR Fellow Andrew Hamilton Wins Writing Prize

We are proud to announce that one of our talented student fellows, Andrew Hamilton, has won third place in the national “Religious Freedom Student Writing Competition,” sponsored by the Washington D.C. Mid-Atlantic Chapter of the J. Reuben Clark Law Society and the International Center for Law and Religion Studies.  Andy’s paper, The New York Marriage Equality Act and the Strength of its Religious Exceptions (supervised by Mark), explores whether the religious exceptions under the New York same-sex marriage law allow Catholic Charities to refuse to place foster children with same-sex couples.

The paper will be published in a forthcoming issue of the Journal of Catholic Legal Studies.  Andrew will be traveling down to Washington D.C. this Thursday to attend the  2012 International Religious Liberty Award Dinner, whose guest of honor is Douglas Laycock.

Warm congratulations to Andy!

Call for Papers: Family, Marriage and Love in Eastern Orthodoxy

The Sophia Institute will host a conference, “Family, Marriage and Love in Eastern Orthodoxy,” at Union Theological Seminary in New York on December 7. The call for papers invites legal perspectives on the subject. Details are here.

Agrama, “Questioning Secularism”

This October, the University of Chicago Press will publish Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt by Hussein Ali Agrama (University of Chicago). The publisher’s description follows.

The central question of the Arab Spring—what democracies should look like in the deeply religious countries of the Middle East—has developed into a vigorous debate over these nations’ secular identities. But what, exactly, is secularism? What has the West’s long familiarity with it inevitably obscured? In Questioning Secularism, Hussein Ali Agrama tackles these questions. Focusing on the fatwa councils and family law courts of Egypt just prior to the revolution, he delves deeply into the meaning of secularism itself and the ambiguities that lie at its heart.

Drawing on a precedent-setting case arising from the family law courts —the last courts in Egypt to use Shari‘a law—Agrama shows that secularism is a historical phenomenon that works through a series of paradoxes that it creates. Digging beneath the perceived differences between the West and Middle East, he highlights secularism’s dependence on the law and the problems that arise from it: the necessary involvement of state sovereign power in managing the private spiritual lives of citizens and the irreducible set of legal ambiguities such a relationship creates. Navigating a complex landscape between private and public domains, Questioning Secularism lays important groundwork for understanding the real meaning of secularism as it affects the real freedoms of a citizenry, an understanding of the utmost importance for so many countries that are now urgently facing new political possibilities.

Triger on Civil Marriage and Non-Marital Cohabitation in Israeli Rabbinical Courts

Zvi H. Triger (U. of Alabama School of Law) has posted Freedom from Religion in Israel: Civil Marriage and Non-Marital Cohabitation of Israeli Jews Go to the Rabbinical Court. The abstract follows.

The only form of marriage that is recognized under Israeli law is religious marriage. Following the Supreme Court’s ruling in the landmark 1963 Funk Schlesinger case, Israeli authorities must register couples who got married abroad as married. Many couples who wish to avoid the religious monopoly on marriage and divorce choose this rout. However, they are utterly wrong in thinking that they achieve freedom from religion by doing so.

In a 2006 landmark decision the Supreme Court held that the rabbinical court system has jurisdiction over the divorce of couples who got married in civil marriages abroad. While they do not need to have a full religious get procedure, the rabbinical court has exclusive jurisdiction over the dissolution of civil marriages of Jews. The Court’s decision was based on halachic principles, and was pre-approved by a panel of the rabbinical court.

However, rabbinical courts have been ignoring the Supreme Court’s injunction concerning the application of a speedier, more liberal divorce procedure in the dissolution of civil marriages, and they insist on performing a full Jewish get procedure. This article presents this trend, analyzes this phenomenon and offers tentative and preliminary speculations as to the reasons for and the direction of these developments.