Working Within the Limits of the First Amendment in Assisting Agunot
The First Amendment of the United States Constitution and the Pennsylvania Constitution provides citizens with protections. The First Amendment also limits the ability of courts to litigate issues that surround get refusal and religious abuse. There are several parts to the First Amendment, but the Free Exercise Clause is the most relevant here. The Free Exercise Clause of the First Amendment provides citizens with the right to practice their religion as they see fit, so long as their practices do not run afoul of public morals or a compelling government interest.[1] The First Amendment prohibits, as relevant here, Congress from making laws respecting an establishment of religion, or from making laws which prohibit the free exercise thereof.[2]
The first Pennsylvania case that has addressed whether civil courts can issue a get was decided in 1932, when the court believed it did not have the power to order a get or a civil divorce.[3] However, things have changed in the court’s eyes since then. Specifically, in 1986 Pennsylvania clarified that the state has the power, if properly exercised within its constitutional limits, to grant divorces.[4]
Some ways that courts have found to work within the limitations of the First Amendment is through using contract law, such as pre-nuptial agreements or clauses being included in the ketubah. When secular courts are handling an agunah’s case, where the husband signed a contract agreement promising to give them a get, but the husband has since refused, they are being asked to do the same as required of them in other situations where contract law and religion overlap. This can occur without the constitutional concern of excessive entanglement; Fisher v Congregation B’Nai Yitzhok, is an example of such a case.[5] The contract entered between the Synagogue and the Rabbi in Fisher was completely silent as to the matter in dispute (whether men and women may sit together during service).[6] The terms of the contract were not ambiguous, not made by accident, by mistake, or by fraud, and therefore the terms of the contract could not be varied under the parol evidence rule.[7] When interpreting contracts, once a custom or usage has been established, “in the absence of express provision to the contrary it is considered part of a contract and binding on the parties though not mentioned therein, the presumption being that they knew of and contracted with reference to it.”[8]
When the parties contracted in Fisher, it was with the common understanding of the Orthodox law requiring separate seating of men and women, which was implicit in the contract, even if not referred to in writing.[9] The court awarded the contract payment amount to the Rabbi, due to the implicit understanding of the Orthodox law that was implied in the contract.[10] The court used civil law and halachic law to determine the right of recovery in Fisher to decide this contract that involved secular and religious principles.[11] Although not every ketubah may explicitly provide procedure for the dissolution of the marriage and the obtaining of a get, the courts can rely on the common understanding that when the couple agrees to be “though wife according to the law of Moses and Israel,” they are agreeing to be governed by Jewish law.[12] Expert witnesses testified in In re: Marriage of Goldman that Orthodox law required the giving of a get; like Orthodox law requires separate seating, and should be read into the contract, so should the understanding that accompanies “the laws of Moses and Israel.”[13]
Although the First Amendment certainly limits the court’s ability to get involved in the granting of a get, modern solutions such as contract law and use of the Lieberman Clause provide a solution for agunot that works within the limitations of the First Amendment.
[1]First Amendment and Religion, United States Courts, https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion.
[3]Price v. Price, 16 Pa. D.&C. 290, 1932 WL 3708 (Pa. Cmmw. Ct. 1932).
[4]Wikoski v. Wikoski, 355 Pa. Super. 409 (1986).
[5]Fisher v Congregation B’Nai Yitzhok, 177 Pa. Super. 359 (1955).
[6]Ibid.
[7]Ibid.
[8]Fisher v Congregation B’Nai Yitzhok, 177 Pa. Super. 359, 365 (1955) (citing 1 Henry Pa. Evid., 4th Ed., § 203. Cf. Restatement, Contracts, § 248(2) and § 249).
[9]Fisher v Congregation B’Nai Yitzhok, 177 Pa. Super. 359 (1955).
[10]Ibid.
[11]Ibid.
[12]In re: Marriage of Goldman, 196 Ill. App.3d 785, 789–790 (Ill. App. Ct. 1990).
[13]Ibid.
