Jewish Law Logo Jewish Law - Examining Halacha, Jewish Issues and Secular Law

Becher v. Becher
New York Supreme Court, Appellate Division -- Second Department



The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion . . ." and is understood generally as prohibiting the government from showing a preference for one religious denomination over another and from participating in religious activities. U.S. Const. Amend. I; Lynch v. Donnelly, 465 U.S. 668 (1983). But the Establishment Clause does not create a "regime of total separation" between church and state. Id. at 673. Instead, "the Constitution allows the State to accommodate religious needs by alleviating special burdens." Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 705 (1994). Furthermore, the Free Exercise Clause of the First Amendment, which states that "Congress shall make no law . . . prohibiting the free exercise [of religion]," U.S. Const. Amend. I, "affirmatively mandates accommodations, not merely tolerance, of all religions, and forbids hostility toward any." Lynch, 465 U.S. at 673.

The current framework for determining whether a statute violates the Establishment Clause of the Constitution was enunciated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Despite numerous challenges to its continued applicability, Lemon continues to guide courts in applying the constitutional admonition to "make no law respecting an establishment of religion" to the facts in a particular case. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 395, n.7 (1993) (stating that "Lemon, however frightening it may be to some, has not been overruled"); Grumet v. Board of Education of Kiryas Joel Village School District, 81 N.Y.2d 518, 601 N.Y.S.2d. 61 (1993) (applying Lemon to an Establishment Clause claim), aff'd, 512 U.S. 687 (1994); Williams v. Bright, 658 N.Y.S.2d 910 (1997)(same). Lemon holds that a state statute does not violate the Establishment Clause if it satisfies the following three-prong test: (1) the statute has a secular legislative purpose, (2) the principal or primary effect of the statute is one that neither advances nor inhibits religion, and (3) the statute does not foster excessive government entanglement with religion. Lemon, 403 U.S. at 612-13. Numerous courts that have considered the constitutionality of various state get laws have concluded that a statute permitting a court to consider the effect of a party's failure to remove all voluntary barriers to re-marriage for its spouse satisfies all three prongs of the Lemon test. See Jodi M. Solovy, Civil Enforcement of Jewish Marriage and Divorce: Constitutional Accommodation of a Religious Mandate, 45 DePaul L. Rev. 493, 514, n. 177 (1996) (summarizing get cases).

A. D.R.L. '' 236(B)(5)(h) and 236(B)(6)(d) Have a Secular Legislative Purpose.

It is constitutionally permissible for a statute with a secular purpose also to have a religious purpose. Wallace v. Jaffree, 472 U.S. 38, 56 (1985) ("a statute that is motivated in part by a religious purpose may satisfy the first criterion . . ."); McGowan v. Maryland, 366 U.S. 420 (1961) (approving Sunday "Blue Laws" despite Sunday being a day of religious observance and the historically religious purpose of the laws); Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 335 (1987).

The trial court correctly found that D.R.L. '' 236(B)(5)(h) and (6)(d) serve a secular purpose, namely "to remove the inequities and misuse of the existing power differential between parties to a divorce as delineated in the decisions of the matrimonial courts of the state . . . ." R-12, citing Avitzur v. Avitzur, 58 N.Y.2d 108, 459 N.Y.S.2d 572, cert. denied, 464 U.S. 817 (1983); Perl v. Perl, 126 A.D.2d 91, 512 N.Y.S.2d 372 (1987); Golding v. Golding, 176 A.D.2d 20, 581 N.Y.S.2d 4 (1992); Schwartz v. Schwartz, 153 Misc.2d 789, 652 N.Y.S.2d 616 (1997)). In other words, this law explicitly grants the court the discretionary power to consider the economic hardship observant Jewish women face when they are not granted a get. This in turn, in the view of the legisla-ture, alleviates the risk unmarried women and their children face of becoming dependant on welfare or other state sub-sidized program as a result of the woman's inability to manage the financial burden of supporting a family or a home alone.

Moreover, the legislature is entitled to enact legislation that provides some measure of protection to state residents from improper coercion, whatever its form. The refusal of a party to a civil divorce to participate in the conclusion of a religious divorce unless it's demands for financial or other concessions are met raises the same state interest raised in any situation where state residents are victims of what the legislature defines as extortionist behavior. The difference in this case is that the vehicle through which the injustice is being perpetrated is that of a Jewish divorce. It is the effect of the possible use of the religious divorce as an extortionist tool that D.R.L. '' 236(B)(5)(h) and (6)(d) attempt to regulate -- not the giving of a Jewish divorce itself.

The statutes also serve the state's interest in ensuring the integrity of the decisions of its civil courts in matrimonial actions. See Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Md. L. Rev. 312, 354 (1992). Before the passage of D.R.L. '' 236(B)(5)(h) and (6)(d), a husband could dictate the terms of the couple's separation in exchange for freeing his wife with the giving of a get. The legislature is entitled to find that the leverage afforded the husband in a religious divorce thus permitted the husband to override, de facto, decisions by a New York State court on issues of distri-bution, maintenance, and child custody. Once passed, the laws did not alter the balance of power afforded to each party to a marriage under Jewish Law, but did ensure that the court's determinations respecting the allocation of the marital estate would have a greater likelihood of being implemented.

The statutes serve yet another secular purpose in that they ensure that individuals divorced under state law are able to exercise again their constitutional right to marry -- a right the State must certainly protect. See Zablocki v. Redhail, 434 U.S. 374 (1987) (holding that a statute that required a showing that a party has satisfied its support obligations to its children before a party could re-marry unduly burdened the party's constitutional right to marry); see also, Loving v. Virginia, 388 U.S. 1 (1967) (invalidating a Virginia Law on interracial marriages and stating "[m]arriage is one of the basic civil rights of man, fundamental to our very existence") (citations omitted).

B. D.R.L. '' 236(B)(5)(h) and (6)(d) Do Not Have the Primary Effect of Advancing Religion.

As the Court stated in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), "not every law that confers an 'indirect', 'remote', or 'incidental' benefit upon religious institutions is, for that reason alone, constitutionally invalid." Id. at 771 (citations omitted). As the trial court properly found, the primary effect of D.R.L. '' 236(B)(5)(h) and (6)(d) is not to advance religion but rather to advance the legitimate secular purpose of addressing the inequities of parties in a divorce proceeding. R-11. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) is particularly illuminating with respect to the meaning of this second prong of the Lemon test. In Amos, an employee, fired by a religious organization because he was not a member of organization's religion, challenged the provision of Title VII of the Civil Rights Act of 1964 that exempts religious organizations from Title VII's prohibition of religious discrimination in employment. In holding that the provision did not violate the Establishment Clause, the Court explained that [f]or a law to have forbidden "effects" under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence. As the Court observed in Walz, "for the men who wrote the Religion Clauses of the First Amendment the establishment of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity."

Id. at 337, quoting Walz v. Tax Comm'n of the City of N.Y., 397 U.S. 664, 681 (1970).

D.R.L. '' 236(B)5)(h) and (6)(d) do not fall into any of the prohibited categories discussed in Amos. The challenged sections simply allow a judge to make equitable distributions on the basis of non-religious principles to remedy a significant power discrepancy between spouses. They do not provide any financial support to a religion, nor do they cause the sovereign to become involved in religion. Despite Defendant-Appellant's best efforts to convince the trial court otherwise, and to confuse the issue before this Court, the law does not enter into the debate among rabbinic authorities as to whether any action on the part of a husband taken in compliance with the law satisfies the requirements of a Jewish divorce. Since the law is not concerned with the treatment of a get under Jewish Law, only with a spouse's role in voluntarily preventing the conclu-sion of a Jewish divorce, the determination as to the effectiveness of the get is beyond the purview of the statute. What the legislature sought to achieve with these laws is address itself purely to the issue of those elements of a Jewish divorce, or any other barrier to re-marriage, that are within the control of each spouse, and prevent the ability of one spouse to manipulate those acts entirely within its control in an extortionist or abusive manner.

Our case is distinguishable from Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994), in which the Court held that the purpose of the challenged statute, to provide bilingual and bicultural special education to religious inhabitants of a village enclave, could be accomplished readily by means other than drawing school district lines along the borders of the enclave, the effect of which was to exclude non-adherents to the religious sect from receiving the benefits of the statute. See id. at 707-08. In our case, D.R.L. '' 236(B)(5)(h) and (6)(d) are neutrally worded to apply to those situations in which a civil divorce has been granted but some other voluntary barrier to re-marriage is in place. Any party to a divorce proceeding who is prevented in some way by its spouse from re-marrying, whether or not that party is Jewish, can invoke the protection of the statutes. And in the application of the statutes to the particular circumstances of this case, where the barrier to re-marriage is a party's failure to participate in the conclusion of a Jewish divorce, the statutes are narrowly worded so as to deal only with the effects and not with the validity under Jewish Law of a Jewish divorce given in order to avoid the application of the statutes.

Instead, our case is analogous to Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989), where the Court determined that a creche with the words "Glory to God in the Highest" had the primary effect of advancing religion, but a menorah display next to a Christmas tree did not. The Court justified its decision by explaining that whether religious symbolism funs afoul of the third prong depends on the context in which the symbolism is displayed. Id. at 598, 614-15. Similarly, D.R.L. '' 236(B)(5)(h) and (6)(d), when viewed in the context of the general equitable principles underlying New York's Domestic Relations Law, do not have as their primary purpose the advancement of religion, but rather the furtherance of the legislature's secular purpose of remedying the inequity between parties to a divorce.

C. D.R.L. '' 236(B)(5)(h) and 236(B)(6)(d) Do Not Foster an Excessive Entanglement With Religion.

A statute fosters excessive entanglement with religion if it "enmeshes churches in the exercise of substantial government powers . . . ." Larkin v. Grendel's Den, 459 U.S. 116, 126 (1982). Only a law that "substitutes the unilateral and absolute power of a church for the reasoned decision-making of a public legislative body acting on evidence and guided by standards, on issues with signi-ficant economic and political implications," violates this third prong of the Lemon test. Id. at 127. Moreover, even if a statute is an entanglement, "[n]ot all entanglements . . . have the effect of advancing . . . religion . . . Entanglement must be 'excessive' before it runs afoul of the Establishment Clause." Agostini v. Felton, 117 S. Ct. 1997, 2015 (1997).

In Larkin, the statute held to be violative of the Establishment Clause authorized churches to prevent the government from issuing liquor licenses to any establishment within a 500-foot radius of the church. D.R.L. '' 236(B)(5)(h) and (6)(d) hardly rise to the level of such a delegation of civil authority to religious bodies or the excessive involvement of the courts in religious affairs. Instead the challenged sections vest a court doing equity with explicit authority to address to the significant power differential between Orthodox Jewish spouses when they are before the court requesting dissolution of their marriage. Defendant-Appellant seeks to have the laws overturned by attempting to convince this Court that the laws' enforcement excessively involves the courts of this state in debates among rabbinic authorities as to the views of Jewish law on the giving of a Jewish divorce. Brief of Defendant-Appellant, pp. 11-15. However, the issue before this Court is whether D.R.L. '' 235(B)(5)(h) and (6)(d) are a proper exercise of legislative authority, enacted consistent with the public policy of the State of New York, with the minimum amount of interference in religious practice. Therefore, how the laws challenged herein are received within the Orthodox Jewish community is irrelevant to a discussion of the laws' constitutionality. Contrary to Defendant-Appellant assertions, the laws do not require a court to interpret religious law or practice. As the trial court explained, "the statutes merely require the courts to take into consideration the status of the parties (the existence of any barriers to remarriage) when they determine the issues of equitable distribution and maintenance." R-12.


Defendant-Appellant asserts that D.R.L. '' 236(B)(5)(h) and (6)(d) violate the Free Exercise Clause of the First Amendment because the challenged sections compel a party to a divorce proceeding to perform a religious act. Defendant-Appellant's argument mischaracterizes the statute and misconstrues the nature of a get.

First, the laws do not compel or even regulate the ability of a party to give a get in accordance with Jewish law. They simply permit a court to consider the voluntary action or inaction of a party to a divorce in the apportion-ment of the marital estate. While a party's refusal to take a voluntary action -- to give its spouse a Jewish divorce -- might result in the court allocating a smaller share of the marital estate than the court otherwise would have allocated to the party, a discretionary economic disincentive does not rise to the level of compulsion under New York law. In fact, regardless of the consequences, the laws ratify the right of the party to choose its own course with regard to the giving of the get - hence the reference to "voluntary" acts.

Second, the giving of a get does not necessarily constitute a religious act. Jewish Law encompasses matters of a purely civil nature and an observant Jew is required to follow these Jewish civil laws in the conduct of his or her affairs. The procedures governing marriage and divorce fall into this category of Jewish civil law. See In re Marriage of Goldman, 554 N.E.2d 1016, 1024 (Ill. App. 1990); Minkin v. Minkin, 434 A.2d 665, 667 (N.J. Super. 1981). The delivery of a get is a private, nonliturgical act that does not involve an affirmation of belief or an invocation of God. See Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Md. L. Rev. 312, 320 (1992).

Moreover, the manner in which the statutes are worded fully supports a finding that the challenged laws are constitutional because they are facially neutral laws of general applicability and are not directed specifically toward religious activities. Defendant-Appellant's Free Exercise challenge thus fails under Employment Division v. Smith, 494 U.S. 872 (1990), whose holding has been re-affirmed by the Supreme Court this past term in City of Boerne v. Flores, 117 S. Ct. 2157 (1997). D.R.L. ' 236(B)(5)(h) by its terms does not apply solely to those circumstances in which one party's voluntary decision not to give its spouse a get. It applies to all situations in which a party to a civil divorce can prevent its spouse from re-marrying by failing to perform any voluntary act. D.R.L. ' 236(B)(5)(h) and 6(d) thus are "valid and neutral law[s] of general applicability" and cannot be said to prescribe or proscribe religious conduct in a manner that violates the Free Exercise Clause of the First Amendment. See Employment Division v. Smith, 494 U.S. 872 (1990).


For the reasons outlined above, we respectfully request that the court affirm the decision below upholding the constitutionality of D.R.L. '' 236(B)(5)(h) and (6)(d).

Dated: September 5, 1997
New York, New York

Respectfully submitted,

125 Broad Street
New York, NY 10004

Counsel for the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America,
Amicus Curiae

Director, Institute for Public Affairs, U.O.J.C.A.

Of Counsel
Page 5 of 5
1 | 2 | 3 | 4 | 5


Previous Page Legal Briefs Index
Page 5 of 5