Family Law Keyed to Weisbergback
Brief Fact Summary. Plaintiff sought dissolution of marriage, and a court order requiring defendant to provide a get to permit a Jewish divorce. Defendant refused to consent to the Jewish divorce.
Synopsis of Rule of Law. A court order forcing defendant to produce a get in order to permit a Jewish divorce is unconstitutional in that it does not pass the threshold requirements of the Free Exercise Clause.
Facts. Plaintiff, Sandra Faye Aflalo, and defendant, Henry Aflalo, were married in 1983 in Ramle, Israel. Plaintiff filed a complaint seeking dissolution of the marriage. Defendant did not want a divorce and took action with The Union of Orthodox Rabbis of the United States and Canada in New York City (the Beth Din) to have a hearing on his attempts at reconciliation. At a settlement conference before trial defendant asserted his refusal to provide plaintiff with a “get.” His position was that regardless of what occurs in the court he will not consent to a Jewish divorce.
Issue. Under the Free Exercise Clause of the United States Constitution, can plaintiff obtain the aid of a court of equity to force defendant to provide her with a get, permitting a Jewish divorce?
Previous case law has held that refusal of consent to a get as a means of securing a more favorable resolution of issues before the court has been deemed unlawful as extortion. Defendant is not in this position, as he claims he desires a reconciliation, but would follow the recommendation of the Beth Din and give the get if that was the end results of the proceedings.
The Free Exercise Clause prohibits government regulation of religious beliefs, but does not absolutely prohibit religions conduct. A law must have both a secular purpose and a secular effect. The law must have a sectarian purpose, and not be based upon a disagreement with a religious tenet or practice or aimed at impeding religion. Only when state action passes these threshold tests is there a need to balance the competing state and religious interests. This case does not pass the threshold test.
The trial court used expert testimony and previous precedent to find that an order compelling a husband to acquire a get is not a religious act. However, the previous precedent examined the problem from the backdrop of the Establishment Clause rather than the Free Exercise Clause. The Establishment Clause prohibits government from placing its support behind a particular religious belief, while the Free Exercise Clause prohibits government from interfering or becoming entangled in the practice of religion by its citizens. The finding that an order requiring defendant to provide a get is not convincing because it would cause the court to be the arbiter of what is religious.
The conclusion that the order concerned purely civil issues is equally unconvincing because the order directly affected the religious beliefs of the parties. Also, a get involves willing consent, and a court order requiring this at the risk of being held in contempt does not have the effect sought. The fear of defendant being imprisoned or surrendering his religious freedoms because of action by a civil court is the very image which gave rise to the First Amendment.