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Can A Congressman Order His Aide To Give His Ex-Wife A Religious Divorce?

There is a fascinating article over at Slate exploring whether Rep. Dave Camp, the Republican chairman of the House Ways and Means Committee, can order a staff member to give his ex-wife a religious divorce:

The congressman is under attack because of his aide, Aharon Friedman, an Orthodox Jewish graduate of Harvard Law School. Friedman has been legally divorced from another Orthodox Jew, Tamar Epstein, since 2010—but has refused to give his ex-wife a get. In Orthodox Judaism, this is the document that a man must give to his wife in order for a religious divorce to go into effect. So long as Friedman refuses to give a get, Epstein cannot remarry within the faith and is considered an agunah, or chained wife.

Epstein’s limbo status has sparked an outcry in the Orthodox world. The chained wife has been a problem throughout Jewish history—inspiring much literature, including a classic Yiddish novel—and in the last decade Jewish women’s activists have made progress in spreading awareness of the agunah’s plight. Epstein’s supporters include a bunch of especially Internet-savvy New Yorkers in their 20s who have turned their attention on Rep. Camp. Insisting that Friedman’s conduct amounts to domestic abuse, they have used the Internet, including social media and the petition site change.org, and the national media to demand that Rep. Camp pressure Friedman to religiously divorce Epstein.

Refusing to give a get is very unusual; the number of cases in North America number in the mere hundreds. Some of those husbands are bitter men who just want to torture their wives. More often, the get is used for extortion. A husband may say he’ll give the get after his wife pays him huge sums of money. Or agrees to lower alimony. Or agrees to a different child custody arrangement. (Friedman will not speak to the media, but people close to the case say he is upset about custody and what he sees as her efforts to limit their daughter’s relationship with him. His daughter and ex-wife live outside Philadelphia, against his will, but with the permission of the court; he is entitled to see his daughter every other Thursday night through Sunday, plus half the summer and half the Jewish holidays.)

Throughout Jewish history, there have been various strategies for dealing with the recalcitrant, get-withholding husband. In the old country, the threat of ostracism was often enough to persuade a husband to come round. If that didn’t work, the wife’s family might hire the czar’s soldiers to administer a beating. There are rumors of similar solutions being used in the ultra-Orthodox world to this day—and not just on this classic episode of The Sopranos. Last July, a Lakewood, N.J. couple was arrested for arranging the kidnapping of a man who fled Israel to avoid giving his wife a get. In Israel, some husbands are jailed until they give their wives a get.

Epstein’s supporters found new screws to put to Friedman: When publicly shaming him directly didn’t work, they went to his boss. The demand that Friedman’s employer intrude on his domestic affairs made me wonder: Would it even be legal for the congressman to tell Friedman to divorce his wife? I’m talking now about American law, regarding the separation of church and state. So I asked Eugene Volokh, the First Amendment scholar and legal blogger, who has written about gets. He told me that Camp would be on shaky legal ground if he pressured his aide. For at least two reasons, Volokh said, meddling in Friedman’s marital life would violate the law.

First, the Supreme Court has held that if the First Amendment means anything, it means that one may not coerce religious practice. The state may not compel someone to pray, or to fast during Ramadan, or to get married in a church. “My sense is that giving a get is a religious practice,” Volokh said. “Since marriage has religious significance in Judaism, terminating the religious marriage does too.”

The Supreme Court has put some limits on First Amendment religious rights. For example, in the 1986 case Goldman v. Weinberger, the Supreme Court ruled that the Air Force’s interest in having soldiers wear standardized uniforms meant it could prohibit Jews from wearing kippot, skullcaps, even though the head covering is considered a religious duty. But there is a difference, Volokh said, between the government curtailing someone’s religious freedom and coercing him to commit a religious act, like issuing a get.

If Camp were to insist that Friedman give Epstein a get, and demote or fire him if he refused, Friedman could also make a claim under Title VII of the 1964 Civil Rights Act, which protects against religious discrimination. Because Congressmen don’t generally intrude on their employees’ divorces, singling out an Orthodox Jew for that kind of meddling is probably unlawful discrimination, Volokh said.

As boorish and misogynistic as Friedman’s behavior is, there is little his employer can do to compel him to give his ex-wife the get without encroaching upon the First Amendment and Title VII. The only hope is that the vilification of Friedman in the media will ultimately pressure him to do the decent thing by his ex-wife. Otherwise Friedman risks becoming so toxic that he will ultimately become unemployable in Washington.


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