I have argued publically that Congressman Dave Camp should provide mentoring and guidance to his employee, Aharon Friedman who is refusing to give his wife a Jewish divorce, known as a get. Thousands of people agree with this position and have even signed a petition to Camp asking him to provide counsel to his misguided employee on this matter.
The petition clearly states that the petitioners are not asking for Camp to fire Friedman. Instead it declares: "We aren't asking Dave Camp to fire Aharon Friedman. All we want is for Camp to stand firmly against this abuse of women's rights by issuing a public statement condemning all forms of domestic abuse, including the refusal to issue a get."
Nevertheless, Mark Oppenheimer, a bi-weekly columnist for the New York Times, has written an article for Slate arguing that Camp is "powerless to solve [this] problem."
Oppenheimer quotes a law professor named Eugene Volokh who argues that if Camp forces Friedman to give a get he may be violating his first amendment freedom of religion and also may be violating Title VII of the 1964 Civil Rights Act which prohibits religious discrimination.
Oppenheimer and Volokh are entitled to their opinion, but I think that they are wrong for two reasons.
First, as stated above the petitioners are specifically not asking for Friedman to be fired. All they are asking is for Camp to express public support for the plight of women who are chained to dead marriages. If Camp can't express support for this position because it conflicts with the beliefs of one of his staff members then both Oppenheimer and Volokh are pushing the first amendment to an extreme position. Many government officials have already spoken out against recalcitrant men including former Governor of New York, Mario Cuomo and the current District Attorney of Brooklyn, Charles Hynes. Mr. Hynes even suggested in a recent documentary that he wanted to bring up a recalcitrant spouse on extortion charges.
And second, according to many attorneys, even if Camp were to actually fire Friedman he would be well within his rights.
Camp firing Friedman is not a First Amendment issue. It is simply an issue of Camp's ability to assess Friedman's very faulty character and, as with any employer-employee relationship, fire an employee who demonstrates bad character and judgment.
Steven Lieberman, a First Amendment expert at the D.C. firm Rothwell, Figg, Ernst & Manbeck, has advised me that Camp would be well within his rights to fire Friedman. Lieberman says, "This is a neutral application of the law. Just as Camp would be justified in firing an aide who beats his wife, so too he would be justified in firing an aide who emotionally tortures his wife and does not allow her to remarry or even date." If Friedman were to argue that his religious beliefs allow him to torture his ex-wife by refusing to provide a get, and thereby insulates him from being fired, this argument would run smack into a line of Supreme Court cases (such as EEOC of Oregon v. Smith) holding that an individual's religious beliefs do not excuse him from compliance with an otherwise valid law regarding conduct that the government is free to regulate. Because Representative Camp could fire Friedman for engaging in domestic abuse, he can certainly fire Friedman for engaging in this form of domestic abuse.
David Schoen, a civil rights attorney and constitutional litigator who was once awarded the American Bar Association's National pro bono publico award and has represented the rights of Muslims to pray freely in prison and Klan members to demonstrate with their masks on in Alabama, has a similar perspective. He says it has nothing to do with a question of religious coercion or freedom.
Reached in his New York office, Mr. Schoen told me: "Any employer, public or private, has the right to decline to hire, retain, or fire, an employee who exhibits character which the employer either considers to be anathema or that is not consonant with the values and character expected by the employer's constituency. It can be analyzed outside the context of religion or religious coercion to simply reflect a matter of character or values with which the congressman does not wish to be associated."
I then asked Mr. Schoen, if you were Dave Camp's lawyer what advice would you give him? He said: "If he believes that the continued employment of Mr. Friedman is either a distraction to the important business of the people he represents or reflects a basic mean spiritedness or other character trait with which Camp does not care to be associated, I think he has every right to fire Friedman. Not for his religious perspectives or actions or omissions, but simply because of character."
Or to put it another way, the first amendment says that the U.S. government can't compel Friedman to give a get, but what Oppenheimer and Volokh miss is that that is not the issue. The issue is not whether Camp can compel Friedman to give a get but whether Camp can fire Friedman for being unfair and mean-spirited. Camp's concern with Friedman should not be of a religious nature but of a character defect. He is acting in an abusive fashion and in this sense it is equivalent to Friedman putting up signs about Epstein that are blatantly false.
If Friedman said I don't want to give the get because I don't believe in it and I am an atheist so don't try to force me, then he would have protection. Being an atheist is not a character defect. But Friedman is not an atheist. He holds himself out as a religious Jew. He believes in the get. The only reason that he is not giving it is because he is mean and as such he has exposed himself as having a defective character trait. If his goal for not giving the get was that he didn't believe in religion then he would have protection from the first amendment. But since his goal is to emotionally torture her, then he has lost his protection.
Dave Camp absolutely has the power to deal with the actions of his employee, Aharon Friedman. If he wanted to, he could fire him today.
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