If you read the Huffington Post, you likely read the New York Times, and perhaps you saw the article on the case of 34-year-old Aharon Friedman refusing to grant his wife a Jewish divorce.
I thought I would depart from my usual focus on the spiritual dimensions of ending relationships and wear my other hat, and teach a bit about Jewish law, and especially about the relationship between Jewish law and ethics. In this case, especially how law and ethics relate to divorce.
A bit of background: In Deuteronomy 24:1, we are told that a man may divorce his wife if she no longer found favor in his eyes. He must write her a "sefer kritut" -- literally, "a book (or writ) of breakage." By the Talmudic age (roughly 100 CE to 500 CE), the term for the writ of divorce was "get", probably from the Latin "gestus" (think "gesture"), which could refer to any legal act.
While Jewish law has always evolved and developed, in the Orthodox tradition the stricture that only a man could initiate divorce was kept. This was the law. Early on, though, it was apparent that the law, as strictly construed, was not ethical. The wife was also a moral agent, and if she were suffering in the marriage, she ought to have the right to get out. By the middle ages, the rabbis had found a solution. A Jewish court could order a man to issue his wife a writ of divorce. On the other hand, they could not coerce him, because a writ does not have legal standing unless it is issued under free will. The medieval rabbis reasoned that no sensible man would refuse the judgment of a court. Such a man was obviously under the grip of an evil spirit, and he had lost his free will. One solution was to put the recalcitrant husband in a pillory or subject him to lashes until he came to his senses and regained his free will. In Israel today, if a religious court orders a man to issue a divorce, and he refuses, he can be arrested for contempt of court. The theory is that he will rediscover his free will after a few nights in the slammer.
Orthodox religious courts in outside of Israel have, of course, no coercive power. In times past, the Orthodox community felt rather impotent to coerce a man to issue a divorce. Oftentimes, the recalcitrant husband would demand a cash settlement for agreeing issue a divorce writ, effectively committing extortion. Shunning the recalcitrant husband was about all the coercion a typical community could muster up, which had minimal effect on a shameless person (the wife's family might hire thugs, but this is not discussed in polite circles).
Over the past 30 years or so, things have changed. As we see in the Aharon Friedman case, the Orthodox community itself has rallied around the "chained woman" in a very public and vocal way. Shunning has given way to shaming. Whatever disagreements might remain in the case of a divorce, the divorce writ should never be used as a bargaining chip. Orthodox Jews often see using the "get" as leverage to be blasphemy, using God's law as a truncheon.
Clearly, the divorced husband in this case has a grievance. The custody agreement does not appear to take into account that he lives strictly by Orthodox law. Whatever his grievance might be, however, the Orthodox community seems to be saying that using the divorce writ to get one's way is off the table. The law says that only the man may issue the writ, but Jewish ethics says that he must issue the writ if his wife demands it.
What does this have to do with the rest of us? Reform and secular Jews typically ignore the requirement of the divorce writ, and Conservative Judaism has devised a legal workaround. For me, the deeper dimension of his case is how divorce and its attendant issues oftentimes have us lose our moral bearings. An Orthodox Jewish man, who would never have dreamt of defying a Jewish court, feels entitled to do so when it interferes with his seeing his children. I cannot even begin to enumerate the number of people, men and women, who have defied a court order to pay child support if they felt the custody arrangement was not fair.
In divorce, I regularly see law-abiding people ready to take the law into their own hands. Custody agreements, indeed, are often not fair, but it is far better to trust a judge eventually to do the right thing, than to set the norm that we each get to take the law into own hands when we are not satisfied with an outcome.
Imagine how healthy it would be if every time a person decided to take the law into their own hands, that the community would gather around and shun and shame that person? The law is supposed to enforce moral social norms, but oftentimes finds itself unable to do so in a timely and effective way. This news story shows a community not willing to accept the letter of the law, that only the male may issue the writ. They are insisting that the morality-based spirit of the law, i.e., the respect for women's rights, be kept as well, and they are vocal and active in this insistence.
I find this inspiring.
Rabbi Eric H. Yoffie: Morality Is Absolute -- and Evolving
Rabbi Jason Miller: How Can Conservative Judaism Get its Mojo Back?
What I mean to say is if your kids are not worth fighting for, then what is?
Why should he have to lose time with his kids if he has the power to prevent that?
Don't get me wrong! I believe that a woman should have the power to give a get just like a man and dissolve a marriage if she wants to. Neither side should ever be hostages to a marriage if they don't want. I just don't like the hypocrisy or lack of equality.
It hard for modern person to understand a spiritual definition of free will. We moderns oftentimes think of free will as the freedom to do anything we want. From a more spiritual perspective, virtuous behavior is the desired norm, and any person who does not act virtuously is considered not free. "Free", in some spiritual systems, means free from inner impediments to doing the right thing (anger, greed, resentment, envy, etc.). Lashes were understood to be a means of breaking down the destructive "ego will" and allowing will of the higher self to emerge. I know this runs completely contrary to modern sentiments.
Cont. below...
Would Beethoven only use a piano if he were alive today? I doubt it. Today the ‘classics’ are rightfully revered, but shouldn’t we also understand that those people used the most advanced instruments known to them at the time? Isn’t it that way throughout mankind’s history in all segments of our population and all industries? Why did we all of a sudden stop expanding our horizons and stunt our growth? Why do we feel that we are showing the utmost respect to our elders or teachers who came before us, if we simply follow in their footsteps and claim that they were smarter and therefore we cannot change what they have taught us? That seems like an insult to those great minds instead of respect. I apologize in saying this but I feel that we have become intellectually lazy by NOT continuing to grow. I look at this as a parent does with their children. We impart our knowledge to them in the hopes that they not only avoid the mistakes we made but also to learn and go further in their development than we were capable of doing ourselves.
Isn’t it about time that we begin to interpret “man” to be “mankind”? Shouldn’t our understanding of equality be extended to our understanding of the Torah?
You say “virtuous behavior is the desired norm”. I couldn’t agree more!!
This is not supposed to happen and seldom does. Yet it matters if she does not have recompense to civil divorce which is a problem in Israel.
If Israeli politics can allow a route for civil marriage and divorce the problem would be near solved. This is not unique to Israel. Look at the Gay marriage issue in the US.
If she does not own a halachic Get she will still have issues if she wants to stay within halachic parameters, that is her choice. She can still live how she wants legally in Israel. Yet she must face a more difficult legal recompense concerning children and finance. That is unfair.
To him, as an Orthodox Jew, the get was good for only one thing, and that was so he would be unencumbered when he married again. It had nothing to do with rights or money. I feel it is an antiquated past time in this day and age.
A person who is of the Jewish faith should not have to go through two divorces before moving on with their lives.
It is a mockery of the idea of free will to lock up someone whose decisions one disagrees with to impel them to make the right decision. Obviously, it's designed to produce good outcomes, but it's hardly surprising that if one starts with a discrimnatory law and tries to get around it with legal trickery the result will be non-ideal.
The same is true of the current situation. Social shaming is a dangerous practice. It has been used as much to punish positive independent thinkers as negative ones. And courts become somewhat impotent when they are stuck with biased laws. The father in this case seems to be ignoring public opinion, not court edict, because the law protects him in this case.
I also think it's a mistake to equate this to not paying child support. It appears the father is doing what's required to support his children. He's not showing respect for Jewish tradition by not granting the get and allowing the mother to remarry. But that's a rather different matter. But it does not appear the mother's showing much respect for Jewish tradition by taking her children two hours from their father and agreeing to a civil visistation schedule that doesn't accord with the strictures of Jewish law.
The problem in Orthodoxy is that the law is presumed to come from the divine will, and also that the divine would not will something unethical. The rabbis have often shifted the understanding of the law according what was considered to be ethical. It is only seen as a mockery from the outside. On the inside, it is seen as ethical activism, "righteous chutzpah", if I may.
The father, if I understand this case correctly, is going against a norm in Jewish law. Two distinguished local rabbis have issued an opinion that he should issue the writ, and that the community should do whatever it (legally) can to persuade him. Just to be clear, the case has not yet been heard by a final Jewish court in this matter. You are right: an edict has not yet been issued. Jewish courts are very reluctant to take sides in these cases; they much prefer them to be settled out of court.
My analogy re child support was not to equate the two, but only to show that when people feel they have not been treated fairly, that they feel at liberty to go against legal norms. Perhaps the mother and the judge should reconsider, but that is not what is at issue. The issue is the using the writ of divorce as leverage.
I appreciate your comments.
Mediation is typically voluntary and may be non-binding. In some states, Parenting Plan Coordination can be used to make the day-to-day, child centered decisions that allow adjustments in timing, parent attendance at soccer games, whatever. I am a psychologist, not an attorney, so I'm not qualified to comment on the First Amendment issues that may have led the judge to believe that he could not "order" the granting of a "Get." There are so many issues here that we just don't have the facts about - why the mother and child relocated, what considerations either side may have offered to resolve the situation, how voluntary the consent was to give the Beit Din court jurisdiction, what position that court took during the period when he wanted a reconciliation and she wanted to end the marriage, etc. There are troubling questions on both sides.
We have learned over the past few decades that divorce is in general very harmful to children. We have learned it is in general harmful to fathers. We have learned women initiate most divorces. Clearly, there is something profoundly flawed and unfair about our current system. I propose we change to a system where if someone initiates a divorce that there is a rebuttable presumption that custody of any children go to the other spouse. It will discourage initiating divorce when children are present, and bring the concept of "innocent until proven guilty" to family court (something we enjoy in other parts of our legal system).
As for domestic violence (which is often reciprocal – when it is not reciprocal, half the time it is the woman who is violent – yet men do not currently have equal legal protection from domestic violence to women), “Physical evidence is readily available in physical abuse cases... “ I had read this before, but I just googled it again to make sure. You can do the same. So obtaining evidence is not an issue. Also, high-conflict marriages (explicitly defined as those with violence or threats of violence) make up probably less than a quarter of all divorces. Children of high-conflict marriages are better off with divorce, but since obtaining evidence is not an issue, and since most divorces are not from high-conflict marriages, my proposed change would not be an issue. My proposed change would help those that are victims of false charges of abuse. My understanding is that that happens a lot. It's one of the reasons that concept of “innocent until proven guilty” is so important to us. It remains elusive in family court though.
Judges clearly do not always do the right thing, and in my experience as a divorced dad many years ago, the system is (or at least was then) biased against dads. My point here is between trusting the judge to eventually do the right thing versus acting outside a moral norm, in this case, the moral norm of the Orthodox community.
I do agree with your point that that a profoundly unjust system changes only when people protest. This does not seem to be the case here, from what we can determine. There does not seem to be an attempt to change the system, in fact, this seems to be an attempt to regress to what was clearly an unjust and discriminatory system. I have great sympathy for the dad here, if indeed his weekends with the kids were obstructed by a clumsy judicial ruling. His protest, in my opinion, should not be the withholding of the divorce writ. His protest should be directed toward the judge.
re custody: in general, the arrangement should reflect what is in the best interests of the children, such assessment arrived at in a fair and thoughtful way.
I agree with you that the arrangement should reflect the best interests of the children, but our current system does not typically lead to that (despite often paying lip service to the concept).
I also agree with you that the man in the story is not protesting in an attempt to change the system. But, this is a social issue where most people are still unwilling to even acknowledge there is a problem that needs to be corrected. Also, people often go crazy when there is injustice regarding their own children -- and understandably so. Taking the "high road" when the deck is stacked against you anyway doesn't usually pay off. I'd consider doing what he did myself if I were Orthodox.
By the way, here is what my son and I went through:
http://news.mensactivism.org/node/15347