A Bad Marriage: Jewish Divorce and the First Amendment

42 Pages Posted: 13 Mar 2008 Last revised: 12 Aug 2009

Paul Finkelman

University of Pittsburgh, School of Law; Albany Law School - Government Law Center

Date Written: 1995

Abstract

This article argues that it is unconstitutional for civil laws, such as the New York "Get" Law, to require that Jewish men give their wives a religious divorce when seeking a civil divorce. The article argued that the process of obtaining a Jewish divorce is inherently religious, and that it is a violation of the Free Exercise Clause to require that someone perform a religious act or ceremony in order to obtain a civil benefit, such as divorce. The article also argues that laws like the New York Get Law violate the Establishment Clause by using the authority of the state to coerce plaintiffs in divorce proceedings to become involved in a religious ceremony. The article concludes that such laws are dangerous to those who seriously practice their faith and that "historically, few religions, especially religious minorities, have fared well once they have asked the state to interfere with their internal structure." Thus, "in the end, observant Jews and all other religious people will be better served by a legal system which avoids entangling itself in the intricacies and complexities of religious law."

Keywords: free excercise clause, establishment clause, first amendment

Suggested Citation

Finkelman, Paul, A Bad Marriage: Jewish Divorce and the First Amendment (1995). Cardozo Women's Law Journal, Vol. 2, No. 131, 1995. Available at SSRN: https://ssrn.com/abstract=1105366

Paul Finkelman (Contact Author)

University of Pittsburgh, School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-648-2079 (Phone)

Albany Law School - Government Law Center ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

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