Judaism and Divorce - Essay Example

Judaism and Divorce Abstract Depending on one’s religious orientation, a divorce can be a very complicated and symbolically significant process. This is particularly true for Jews. Although divorce is governed primarily by state law, and to a much lesser extent federal law, Jewish women are often forbidden from remarrying despite having secured a valid civil divorce. This is because Jewish law sets forth rigid procedures for a woman to receive a formal divorce under Judaism, the decree being designated a get, and also sets forth severe consequences for Jewish women whom violate Jewish law. Despite these constraints, Jews have a comparatively high divorce rate and this raises the issue as to whether the divorce procedure is primarily intended to honor religious principles or designed to prevent an even higher divorce rate which might threaten Jewish identity. Although divorce in the United States of America is governed primarily by state laws, religion also plays an important role when many people consider divorce as an option. This is true whether the married couple is Christian, Jewish, Mormon, or attached to any other religious institution. What results is a multi-layered approach to divorce in which religious scripture exists alongside state law as a governing set of principles and processes. Of particular interest is when religious doctrine cannot be neatly harmonized with secular state laws; this is significant because there are instances, such as in the case of Judaism, when a civil divorce is granted under a state’s laws but not granted pursuant to Jewish doctrine. The consequences can be especially difficult for Jewish women. This essay will examine this multi-layered approach to divorce, the tension that can exist between religious scripture and state divorce law, and how divorce among Jews compares with people from other religions. DIVORCE PRIMARILY A CREATURE OF STATE LAW As a preliminary matter, divorce must be considered within a legal context. In the United States that means a combination of federal and state law; in the case of divorce, state laws are fundamentally controlling. Indeed, as stated by a leading scholar in the field, “Judges, scholars and practitioners commonly assume that family law decisions are quintessentially matters of state law. For example, a common theme of the Supreme Court’s federalism decisions is the assertion that “family law (including marriage, divorce, and child custody)” is a matter of exclusive state concern and beyond federal regulation” (Law, 2000). In large part, this is true; it must be noted, however, that state law is not totally exclusive. Federal law, particularly when certain divorce-related issues raise civil rights issues, can be invoked to seek an equitable remedy where state law is deemed inadequate. Historically, federal law has been invoked in divorce cases when important issues regarding race and gender have been involved. Religion is a similarly important issue. This federalism regarding divorce, the interplay of a predominant body of state divorce law coupled with federal restraints regarding fundamental civil rights, is important in the instant case because many have argued that Judaism’s approach to divorce sometimes violates the rights of Jewish women. In particular, there is the case where a Jewish woman obtains a civil divorce pursuant to state law and is then denied a divorce pursuant to Jewish scripture. This situation has been designated as Agunot (Abandoned Wives) by Rabbi Mayer E. Rabinowitz, an associate professor of Talmud at the Jewish Theological Seminary, because Jewish women can be prevented from remarriage despite complying with relevant state laws (1998). The religious doctrine, in effect, operates to make the state law meaningless in the lives of women devoted to the Jewish faith. In order to better understand how Judaism threatens the civil rights of Jewish women it is necessary to understand how divorce works in Judaism. DIVORCE AND JUDAISM Judaism has a comprehensive approach to divorce. As an initial matter, a Jewish divorce seems rather modern and simple given the fact that divorce is a no-fault procedure. Jewish law provides, for example, that a Jewish man may request a divorce for a reason or for no reason (Judaism 101: Divorce, 2008). Jewish men are accorded a strong status under Jewish law and are free to divorce freely. Buttressing this male superiority are provisions in Jewish law that require a Jewish man to divorce his wife; one illustration is when a Jewish wife engages in sexual relations outside of the marital union. In this case, Jewish law requires the husband to divorce his wife regardless of his personal desires. In short, Jewish law places the husband on a pedestal and constrains Jewish wives. This male superiority persists even in the procedural aspects of a Jewish divorce. The process, in simplified terms, involves the man deciding to divorce, providing a written divorce form to his wife, and then simply “sending her away” (Judaism 101: Divorce, 2008). The process, however, is overseen by Rabbis and a detailed set of scriptural rules and regulations designed to protect the Jewish women financially. A cash payment, for instance, is almost always awarded as a part of any divorce or annulment. The actual divorce decree is referred to as a get; the significance of securing a get for a Jewish woman cannot be understated. This is because a Jewish woman cannot remarry under Jewish law unless she has received this get. A man, in short, can easily request and obtain a divorce whereas a woman remains at the mercy of the man’s benevolence. This raises the central problem mentioned above. More specifically, as mentioned above in reference to the potential conflicts among federal, state and religious laws, “It is important to note that a civil divorce is not sufficient to dissolve a Jewish marriage. As far as Jewish law is concerned, a couple remains married until the woman receives the get” (Judaism 101: Divorce, 2008). Thus, in effect, a Jewish woman may comply with all relevant state and federal laws, secure a valid divorce pursuant to state law, and still be denied the get under Jewish law. From a secular position she is free to remarry, but from a religious position she is not allowed to remarry if she wants to remain a part of the Jewish community. The argument that the woman can simply leave the faith is disingenuous because Jewish law imposes severe consequences for Jewish women whom remarry civilly despite not having secured the get; a particularly nasty example is when Judaism designates a subsequent remarriage as adulterous in nature, thus condemning any children born from that remarriage to the status of “mamzerim” (illegitimate children or bastards) (Judaism 101: Divorce, 2008). The woman is thus placed in an inferior position, her place in the religious community is extraordinarily precarious if she does not secure the get, and even her future children are threatened for their mother’s religious misdeeds. Some scholars of Judaism and divorce have attacked this inferior position of women harshly; Joseph, for instance has argued that “in too many situations this male prerogative becomes the means for extortion, vengeance and affliction--certainly not a biblical ideal. Thus, although her consent to the divorce is necessary, the woman is still at the mercy of the man” (2008). These problems have not gone unnoticed in the Jewish community. The Jewish faith, like other religions, is not a monolithic one; to be sure, there are different factions which stress or disregard different principles. This is no different in the divorce context. As a general rule, conservative Jews, orthodox Jews, and all Israeli Jews are bound by the get; interestingly, however, the reform faction articulates a policy which favors reliance on local civil courts (Joseph, 2008) rather than a strict religious-secular division. The hope for more harmonization, though, is faint as the reform movement’s position is not absolute and a minority position in any event. In sum, Judaism imposes procedural requirements that make Jewish divorce a burden for Jewish women that cannot be remedied by state law or civil courts. If a woman wants to retain her Jewish identity, and she cannot secure a get from her husband or through intervention by rabbis, then she is effectively barred from remarriage or otherwise engaging in sexual relations with any other man. The risks are too great because the Jewish religion sanctions not only the Jewish woman who violates the rules, but any subsequent children as well. DIVORCE RATES: A COMPARATIVE ANALYSIS Oddly enough, divorce rates among Jews are quite high when compared with people with other religious affiliations. One might expect higher divorce rates, for example, among couples with religions that don’t make divorce difficult. To some extent, this would be true. Born-again Christians have a higher divorce rate than other Christians, such as Catholics (27% to 24%) (Divorce and remarriage: U.S. divorce rates for various faith groups, 2008); surprisingly, however, Jews have higher rate of divorce than Born-again Christians (30%-27%), a higher rate of divorce than other Christians (30%-24%), and even a higher rate of divorce than people whom describe themselves as Agnostics and Atheists (30%-21%) (Divorce and remarriage: U.S. divorce rates for various faith groups, 2008). The implications are rather shocking, particularly given the aforementioned restrictions that Judaism places on women regarding divorce. The data suggests that the Jewish divorce rate, already high, would be even higher if the religious doctrine was relaxed. It is therefore possible that conservatives in the Jewish community might fear relaxing the rules regarding the get because higher divorce rates might pose a threat to Jewish identity and solidarity. CONCLUSION A surprising insight is that, despite all of the rigidity of the get, divorce rates among Jews remain high. The reluctance to alter the rules regarding the get may, in fact stem from a desire to preserve Jewish identity as much as a desire to honor traditional religious doctrine. References Divorce and remarriage: U.S. divorce rates for various faith groups, age groups, & geographic areas (2008). Religious Tolerance.ORG Ontario Consultants on Religious Tolerance. http://www.religioustolerance.org/chr_dira.htm Joseph, N. B. ( 2008). Jewish Women in Chains. United Jewish Communities. Retrieved May 20, 2008 from http://www.ujc.org/page.html?ArticleID=973 Judaism 101: Divorce. Jew Faq.org Retrieved May 20, 2008 from http://www.jewfaq.org/divorce.htm Law, S. (2000). Families and Federalism. Journal of Law and Policy. Vol. 4:175, 175.238. Retrieved May 20, 2008 from http://law.wustl.edu/journal/4/Law%20p175.pdf Rabinowitz, M. E. (1998). Agunot (Abandoned Wives). Jewish Virtual Library: A 175.239. Division of the American-Israeli Cooperative Enterprise. Retrieved May 20, 2008 from http://www.jewishvirtuallibrary.org/jsource/Judaism/agunot.html Read More