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Divorce Bill Breaches Church-State Wall

After an emotional debate about marriage, women's rights and the separation of church and state, the Senate voted against a measure seeking to remove religious barriers that prevent spouses from remarrying after obtaining a civil divorce.

The bill failed on a 22 to 22 vote.

The bill's sponsor, Sen. Lisa A. Gladden (D-Baltimore), argued that the measure was not about religion but "about fairness. It's a women's rights issue."

Gladden sponsored the bill for Orthodox Jewish women in her district who said they were unable to obtain a divorce because their husbands would not grant them one.

Under Jewish law, a civil divorce does not end a marriage. A woman must receive what is known as a "get" from her husband, and sometimes the husband will withhold the get, which makes it impossible for her to remarry as an Orthodox Jew.

The bill would have required couples who are getting divorced to file an affidavit saying they have agreed to drop religious barriers to remarriage.

Sen. Rona E. Kramer (D-Montgomery) said the bill could affect not just the Jewish faith but other religions.

Sen. Jamie Raskin (D-Montgomery) said the bill was unconstitutional because "the entire purpose of this bill is religious . . . and it does entangle the state with religion."


-- Ovetta Wiggins

By Phyllis Jordan  |  March 19, 2007; 6:27 AM ET
Categories:  General Assembly  
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Comments

Um, these Jewish women married under the rules of the religion. Some religions allow this type of restriction and the state should not get themselves involved.

Posted by: SM | March 19, 2007 11:25 AM | Report abuse

A group of Maryland Democrats will next week seek to legislatively over-ride the Laws of Physics as unfair, and the Golden Rule as too restrictive.

Posted by: gitarre | March 19, 2007 11:38 AM | Report abuse

Sounds like an equal protection issue - does the wife get to refuse to give her husband a get as well? If not, then the state has every right to refuse to participate in a discriminatory exercise.

The state isn't telling the religion what to do; it's simply telling citizens of the state that they can't get a divorce through the state unless they agree to equal terms. Fair's fair. If the adherents to a particular faith (orthodox jew or otherwise) don't like it, they don't get to divorce under the laws of Maryland.

Posted by: Kate | March 19, 2007 12:04 PM | Report abuse

If I'm understanding this correctly, women can still get a legal, civil divorce and get remarried under Maryland state law, so they would be legally married. It's a religious problem, not a legal one, whether they are married in the eyes of Jewish law. If they have a problem with the fairness of the Orthodox Jewish laws, they should take that up with their rabbi.

Posted by: Anonymous | March 19, 2007 12:31 PM | Report abuse

Women of any religion can get a civil divorce and remarry with a civil marriage. What any religion does or does not allow in the RELIGIOUS marriage is of no concern to the state, nor does the state have any right to restrict the religious rules. Catholics cannot remarry in the church without a religious annulment even if they have a civil divorce, but they are always free to remarry in the court. The religion cannot prevent that and the state cannot force the religion to allow it in the rules of religion. Simple as that- separation of church and state. It is a disgrace that 22 legislators wasted taxpayers' time and money with an obviously unconstitutional motion to force religions to comply with state's desires.

Posted by: Anonymous | March 19, 2007 12:59 PM | Report abuse

It is not an equal rights issue at all- even if the wife cannot refuse her husband a 'get', it has nothing to do with the state. Religions have the right to have 'unequal' rules for men and women, and they always have. The state is not 'participating in a discrinimatory practice'- it is not participating at all bc this is the religious side of the marriage, not the state side. The state still grants a civil divorce, and its participation ends there.

Posted by: Anonymous | March 19, 2007 1:03 PM | Report abuse

As others said, this bill is all about state entanglement in religion. What happens when one spouse says they removed the barriers, but the other says they did not. What happens then? A judge has to rule on the merits whether a religious practice was met. How does that sound?

Posted by: K-Romulus | March 19, 2007 1:59 PM | Report abuse

This has nothing to do with the doctrines of a particular religion - this legislation does not tell a religion what it can or cannot do at all. This legislation simply says that one of the requirements of a civil divorce in the state of Maryland will be that both the husband and wife have to certify that they have dropped any religious barriers to remarriage. States do this all the time - they premise the receipt of state benefits on the partaking of certain obligations. You can get a driver's license, but not until you get insurance. You can practice law, but not until you pass the bar exam. You can get a civil divorce, but not until you sign an affidavit that you have lifted these barriers.

You might disagree with this on individual rights basis, and I can see that argument. But it's wrong to suggest that this has anything to do with telling a religion what it can and can't do; the religion is free to maintain its own rules. This just prevents a husband from holding his ex-wife hostage. The analogy to Catholic annulments is equally incorrect, because that's a church position. The equivalent here would be telling orthodox Judaism that it can't continue the "get" practice, and that's not what the state is doing at all.

The primary thing for me, though, is that any man who would do this is a jerk. He doesn't deserve the protections of the state, particularly when his wife isn't permitted an equivalent trump card. I'd feel the same way if we were talking about racial discrimination instead of sex discrimination.

Posted by: Kate | March 19, 2007 2:35 PM | Report abuse

I am jewish and pretty darn liberal in my political views....but the fact that this bill was even brought to the floor is astounding! How can the state tell how anyone how to practice their religion. I am well aware of gets, how they work and how many orthodox men have used them to their advantage against their wives. Howeve, it is completey a Jewish issue, not a state government issue. Let the different rabbinical groups sort it oout and change what judaism requires if it chooses to do so. These are fully able to get a divorce and get remarried under the laws of Maryland. That means they are being provided equal protection under the law. The fact that they choose to not to get remarried because their religion say they cannot is not a state issue...it is that simple.

Posted by: 1st amendment? | March 19, 2007 2:38 PM | Report abuse

To Kate - - -

I think you are missing a major point. You stated "You can get a driver's license, but not until you get insurance. You can practice law, but not until you pass the bar exam." In each case, the prerequisite is another civil requirement that the state has full authority to regulate. But what if the State said Jews can't be lawyers unless they have passed the bar exam and been Bar or Bat Mitzvahed. Then how would you feel? That is essentially what this law does. It says you are not entitled to a certain benefit that is provided to all citizens, the right to marry and divorce, unless you practice your religion on the way we tell you. How can that possibly be ok? I am very confident that if this bill ever did come to fruition it would be struck down on 1st amendement grounds very quickly.

Posted by: ist amendment? | March 19, 2007 2:44 PM | Report abuse

The analogy with Catholic annulments is precisely on point. The "get" practice is a religious policy. As others have stated, just as someone who married in the Catholic church can have a civil divorce without an annulment, Jews who married in a Jewish religious ceremony currently are able to obtain a civil divorce even if they are unable to obtain a "get." This bill, if it passed, could make it more difficult for women to get a civil divorce. Thus, it is more restrictive. Besides being a clear breach of the wall of separation, it potentially makes things worse for women, who are now able to remarry in a civil ceremony, but would be unable to do so if they are prevented from obtaining a civil divorce as well as a religious release from the marriage.

Posted by: To Kate | March 19, 2007 3:12 PM | Report abuse

Only in the Peoples Republic of Maryland would this occur. What's next, a state declaration that the sabbath only be observed on Sunday? I thought Maryland had moved a bit more towards the middle because of the common sense politics of foromer governor Erlich, but it's pretty clear that this state will try what ever it can to manage your life. All of the Senators who voted for this law should be impeached for attempting to breach the 1st Ammendment.

Posted by: Tom | March 19, 2007 3:37 PM | Report abuse

To "ist amendment" - I'm not missing your point; I'm just disagreeing with it. The legislation doesn't target Jews anymore than it targets atheists. It's not saying that anyone has to meet a religious test in order to receive a state benefit. It's just saying that we as a state are not going to sanction a man holding his ex-wife's freedom hostage. It's a policy position. If a man wants to do that, he has every right to do so under law. No one will arrest him or fine him or otherwise sanction him in any way. But at the same time, the state of Maryland will not assist him in that endeavor by making it easier for him to do it.

To "to Kate" - Unless you're arguing (wrongly) that in the Catholic church, a man can get an annulment for himself while single-handedly denying one to his ex-wife, the Catholic church analogy is wholly inapt.

Posted by: Kate | March 19, 2007 3:39 PM | Report abuse

*quote* Under Jewish law... sometimes the husband will withhold the get, which makes it impossible for her to remarry as an Orthodox Jew. *unquote* the State cannot regulate make law that is prohibited for Congress to make. *quote*Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;... *unquote* the State would be establishing a new religion AND prohibiting the free exercise of Orthodox Jews! Maybe State Govenors, legislators, and Judges should be -* in addition to their oaths to support the Constitution -* be required to attach opinions to thier bills and orders that lay out what language in the Constitution they are interpreting to come up with their bills and orders... at least the voting public would be able to tell if such State officials are intentionally trying to undermine the Constitution or if they are merely stupid or lacking in capacity to think.


Posted by: Anonymous | March 19, 2007 3:59 PM | Report abuse

I agree that the state has crossed the line. Being Jewish myself, I am fully aware of how a get works, and also fully aware that some Orthodox men use it as a tool to seek revenge against their wives. That being said, I would not want the state to get involved in this sort of religious dispute. What would be next? State regulation of who can perform a bris (ritual circumsion)? It's a dangerous precedent.

Posted by: Loren | March 19, 2007 4:05 PM | Report abuse

Sure hope that the State, and religious communities, which wanted to keep civil divorce (and therefore marriage) separate from religious ceremonies stick to the same line when asked to respect the court's opinion that same-sex couples should be able to have a civil (if not religious) marriage. I bet suddenly the bright line of separation they want gets a little muddy. It seems sometimes that relgious establishments want freedom from civil government's interference, but not from interfering in civil government.

Posted by: Paul Browne | March 19, 2007 4:06 PM | Report abuse

Kate--

While I understand your point...I still don't see how you can see it is a "policy decision" Jewish law also requires that women sit is a separate less desireable area of the synogauge and not with the men. It requires wome to cover their head in front of men who are not their husbands. What if the man and the woman both chose not to get a "get" but file for civil divorce anyway. Will the State of MD have the power to refuse that couple a divorce because they did not divorced religiously first? Will our family courts have to get involved in all kinds of research in the Jewish community to determine if the parties have gotten a "get"? Who has the authority to attest to the fact that they have? What if one rabbi says thay have and another says it was not official...who does the state believe? These are all questions that would occur if we attemt to make this "policy decision."

In orthodox judaism the issue of marriage has traditionally been as much of a business transaction (dowrys, arranged marriages etc.) as it was about love. The "get" is part of that. Because the man has more stature in the orthodox theology, he also has more power in granting a woman a divorce. This is completely a religious issue that affects the parties because they choose to be a part of a particular religion.

By the way...I really enjoy the intelligent discourse this blog is having today!!

Posted by: 1st amendment? | March 19, 2007 4:12 PM | Report abuse

*same-sex couples should be able to have a civil (if not religious) marriage* I would simply love to see American citizens force government to live up to the oath to support the Constitution as it is! And stop trying to ammend it via religious or atheist majorities except by and through Article V ***The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.***
If government leaders don't like any part of the Constitution, they should have the guts to run on a platform to change the part they don't like... they should stop passing separate but equal laws, best interest of the child is paramount precedents, and whatever this Regulation of Orthodox Judism bill is called and then relying on the Supreme Court to wait decades to overturn...

Posted by: Anonymous | March 19, 2007 4:17 PM | Report abuse

Your arguement is sound, but the bottom line is that a state cannot meddle in religious affairs, period. It is true that there is an equal protection issue here, but the problem is that the entire premise of Orthodox Jewry is based on seperate roles for men and women. Women are not permitted to study, worship with men, or even come in contact with a man during mestruation. Is the state going to prohibit these practices because men and women are not treated equally in the eyes of this religion? There is an interesting movie that tackles this issue called "Kaddosh," and clearly shows how unequal men and women are in this faith. It may seem antiquated to you or I, but the people who believe in all of the mitzvot have the right to follow them without government interference. Just because some politicians don't think it's fair doesn't mean that they can re-write religious law. It is sad that some Orthodox Jewish men do not grant their ex-wives gets, but sadly that is what has been laid out in a religious law that supplants anything any state or commonwealth in this country can enact.

Posted by: To Kate | March 19, 2007 4:28 PM | Report abuse

Why don't we just abolish religion altogether?

That's clearly what is at work here. Some winey liberal state senator heard a story about Jewish men witholding gets from their wives and felt it was her duty to stand up on the stump of "equal right." Well good for her, becuase she just lost EVERY vote in her district, because if this had passed it would have eliminated the practice of Orthodox Judaism.

Ms. Gladden may not agree with Jewish law, but she has no right ammending it. Maybe should should re-examine what the word "faith" means, and respect what others believe in, instead of sticking her nose in where it doesn't belong!!

Posted by: Steve | March 19, 2007 4:40 PM | Report abuse

I agree, 1st Amendment! This is a fun debate.

I guess you and I are interpreting the legislation in different ways. It doesn't look to me like it requires anyone to get divorced in the church, nor does it necessitate a decision as to whether the parties have formally been divorced in the church. Instead, it just says that the parties agree that as part and parcel of their request for a civil divorce, they agree not to interfere in each other's ability to obtain a religious one. If they belong to a church that won't grant a religious divorce for whatever reason, that's a wholly separate issue, and one the courts should have no part in making.

I have a question regarding a possible analogy. There are some widespread religions that - even today - permit the husband to corporally discipline the wife, subject to certain limitations (almost all of which, I believe, equate to a prohibition on extreme or lasting physical harm). Women are expected to submit in order to be a part of that faith. But the states have made a policy decision that even if some women are willing to submit to such discipline in the name of their faith, we as a state will not permit it. In essence, we protect those women from something they accept as a part of their faith, even if they do not seek our protection.

Is this situation different? There's no physical abuse, but there is a mental and psychological abuse component to this situation, particularly when some women are asked to sacrifice custody of their children (for example) as the price of the get.

I'm one of the loudest proponents of freedom of (and from) religion of anyone I know, but I think that's the big issue for me. It looks like the state's complicit in the psychological abuse of women in this situation, and that doesn't sit right with me.

Posted by: Kate | March 19, 2007 4:44 PM | Report abuse

Don't state senators consult with lawyers before writing and introducing bills? How incompetant do you have to be to think that this law would be constitutional? Are religions suppose to change their traditions because some politician feels that the practicing of that religion treat men and women unequally. Maybe the Maryland state senate should go visit Salem, Massachussetts. I'm so glad I escaped these communists.

Posted by: John | March 19, 2007 4:46 PM | Report abuse

Kate,

The legislation would have required a couple to release each other from any religious bond before being granted a civil divorce. That means, in the case of Orthodox Jewry, that a woman could not be granted a civil divorce until a get has been granted by the husband. How is that a good thing? Why should the state care how the couple is view in the eyes of their religion? If a couple chooses to have a civil divorce, that should be granted to them regardless of how they are related in the view of their religion. No law should be passed that limits the practice of religion unless the practice of that religion inhibits the functioning of society. Society as a whole is not hurt by this practice, and couples enter into a religious pact with each other that is completely understood prior to getting married. A civil marriage is not a religious one, and the converse can not be held against a couple. The civil marriage is only required because the state requires documentation of a union for legal purposes, and the granting of a civil divorce should hold no other blockades than what it took to get the marriage.

Posted by: Steve | March 19, 2007 4:56 PM | Report abuse

22 SENATORS actually thought this bill was a good idea??????? I cannot believe that our elected representatives could be that blind to the constitution, and to have half of the senate vote for a bill limiting the practice of a religion is absurd!!!

Let's ship these guys back to England circa 1775!!!

Posted by: David | March 19, 2007 5:08 PM | Report abuse

Kate:

Just to be clear - if an Orthodox Jewish man decides that he no longer wishes to practice his religion - he decides that he wants nothing more to do with the faith - and as a result he and his Orthodox wife decide to divorce - you believe it would be appropriate for the state to require him to perform a religious procedure in a religion in which he no longer believes in order for him to obtain a civil divorce?

Posted by: Anonymous | March 19, 2007 5:19 PM | Report abuse

Steve,
Sorry to be the annoying law-school kid, but that's not actually the language of the legislation.

The bill stated (in part) that a party seeking or not contesting a divorce "shall file, at the request of the other party, an affidavit stating, under penalty of perjury, that the affiant has taken all steps solely within the affiant's control to remove all barriers to remarriage by the other party."

And ... wow. Upon reading it, I don't think that the bill would even fix the get issue for Orthodox women. Don't gets have to actually be issued by a rabbi, upon the husband's request? So a get wouldn't be solely within the affiant's control anyway, would it?

Posted by: Kate | March 19, 2007 5:25 PM | Report abuse

So the really amusing part of this:

The first thing that must be attested when one applies for a Jewish Get is that neither party is being coerced and that they are taking the action of their own free will.

It is entirely possible that an Orthodox Rabbi could invalidate a Get if it was required by the State - thus eliminating the opportunity for any Orthodox divorce within Maryland.

The Orthodox faith already has a mechanism to deal with this -- a prenuptial agreement that includes significant financial penalties on a monthly basis [enforable by civil courts] if the husband refuses to sign a Get after requested.

Posted by: Anonymous | March 19, 2007 5:31 PM | Report abuse

All right, Kate. While you seem to be acknowledging in your latest post that this bill solves nothing, you said earlier that it was psychologically abusive of a man to not give his (ex) wife a get upon request. But if the state then compounds this abuse by also not granting her a civil divorce, how is that making things better?

Posted by: Anonymous | March 19, 2007 9:01 PM | Report abuse

Unfortunately, this is not an issue in which people are trying to supersede religion. Furthermore, this is not a case where the Rabbis can do much. in most of these cases, the husband has abused the wife (emotionally or physically) no longer holds of orthodoxy and as a last vestige of abuse refuses to grant the wife the get. If you know anything about abusive situations, you know that this is classic abusive behavior. Going by your logic, the state should not intervene if a religion permits a man to beat his wife. After all, if she wanted to get out of it, she just doesn't have to believe in that religion.

Posted by: Big Picture | March 19, 2007 10:42 PM | Report abuse

"If you know anything about abusive situations, you know that this is classic abusive behavior."

Then charge an orthodox man who refuses to grant his wife a Get with abuse -- and see how far you get in the court system.

The Orthodox faith *requires* that a Get be freely given. Period. Nothing the State can do about that. Period. If an Orthodox man refuses to grant his wife a Get, and if there is no pre-nuptial agreement that puts a financial penalty on this, then there is nothing the State can do. Period.

Is that fair? I don't think so -- but then again, I'm not an Orthodox Jew. Religions get to set policies that aren't fair -- they are 'handed down by God' and all of that. The State can step in when the State has a competing interest [personal safety] -- but that is and always has been a very limited right.

Posted by: Anonymous | March 20, 2007 10:53 AM | Report abuse

Beating a spouse is domestic violence assault, something that the state DOES have an interest in preventing. Refusing to grant a get could be considered emotional abuse, not physical assault. Is that illegal? Maybe, but being a jerk is not a crime until it becomes unwanted contact, i.e. harassment, something the state DOES have an interest in preventing. The remedy for harassment is a court order to stay away from the victim. The remedy for the NO GET situation would be the court ordering someone to perform a religious ceremony, or refusing to grant a civil benefit like divorce until the religious ceremony is performed, something the state CANNOT DO as long as we have a 1st Amendment.

Posted by: k-romulus | March 20, 2007 11:33 AM | Report abuse

Since the statute is neutral, it would apply to other religions besides the Orthodox. What if the couple practiced some obscure religion whereby the divorcing spouse had to kill a chicken and drink it*s blood to properly divorce a spouse? Sorry, hubby, this court can*t grant you a civil divorce until the chicken is drained!

Posted by: K-Romulus | March 20, 2007 11:36 AM | Report abuse

The courts enforce religious contracts all the time. For example, it will ultimately be up to the courts, if the parties don't agree, to decide who owns the buildings of the churches that are seceding from the Episcopal Church in Virginia.

The get is a contract that governs who owns property in the event of a divorce. The courts routinely enforce pre-nuptial agreements. The state has rules about what sorts of pre-nuptial agreement are allowed. I don't think this legislation goes much further than that. It, in essence, requires you to renounce certain types of unfair pre-nuptial agreements before you get a divorce.

Posted by: ben | March 20, 2007 11:42 AM | Report abuse

To Kate:

I'm afraid your not seeing the point. You wrote:

The bill stated (in part) that a party seeking or not contesting a divorce "shall file, at the request of the other party, an affidavit stating, under penalty of perjury, that the affiant has taken all steps solely within the affiant's control to remove all barriers to remarriage by the other party."

Yes, that is what the article said. But as of right now, the man can not block the civil divorce (assuming there are no legitimate reason for contesting it). If the bill passed, the man could by simply refusing to sign the affadavit. End result, the woman could not obtain either a religious divorce NOR A CIVIL ONE.

Call it the law of unintended consequences. I'd like to say I'm surprised there were 22 lawmakers who didn't see this, but sadly I can not.

Posted by: jibberjabber | March 20, 2007 12:14 PM | Report abuse

In response to Kate's posting, the women involved cannot simply take it up with their rabbi.

For a woman to be married according to Jewish law, she must be free to marry in the first place. If she is not free to marry, that affects the status of any children that she might have in a subsequent marriage.

If a former husband withholds a get, she cannot remarry. Even though she could legally remarry according to state law, that does not change the fact that the marriage would not be valid according to Jewish law. The rabbis are bound by the same Jewish laws; unlike some religions, they cannot grant a dispensation for her to marry without a proper divorce according to Halacha.

Unfortunately, many Orthodox Jewish men have held a get over their former wives heads, preventing their remarriage knowingly, out of spite.

Personally, even though this legislation does delve into the matter of the separation of Church and State, I personally feel that it is a good provision to include the requirements for divorces granted in the state, regardless of the religion of the parties.

This same proviso could apply to Catholics seeking a divorce and desiring to have the marriage annulled. If there were a requirement that the former spouse cooperate, it would make the process easier for everyone.

Posted by: Gabriella | March 20, 2007 6:22 PM | Report abuse

lorte røvve hjemmeside

Posted by: Anonymous | March 21, 2007 5:37 AM | Report abuse

The state should not be attempting to dictate religious practices. PERIOD.

Posted by: Rufus | March 21, 2007 9:37 AM | Report abuse

According to Wikipedia, New York has such a law. Has it ever been tested in court?

Posted by: Cabin John | March 21, 2007 5:09 PM | Report abuse

Any validation of this New York law from a reliable source?

Posted by: Rufus | March 26, 2007 7:44 AM | Report abuse

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