Becher v. Becher
New York Supreme Court Appellate Division -- Second Department (1997)
Docket No. 97-03205
New York Supreme Court Appellate Division -- Second Department
- against -
BRIEF OF AGUDATH ISRAEL OF AMERICA AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLANT
Kings County Clerk's Index No. 20427/93
TABLE OF CONTENTSTABLE OF CONTENTS..............................i
TABLE OF AUTHORITIES..........................ii
PRELIMINARY STATEMENT AND INTEREST OF THE
The Essence of the Free Excerise Claim.........2
ARGUMENT: THE 1992 GET LAW SUBSTANTIALLY
1. Consideration of the Free Exercise Issue
2. The Appropriate Standard of Free Exercise
(a) The 1992 Get Law is Specifically Targeted
(b) Application of the 1992 Get Law Would
(c) The New York State Constitution's Equal
3. The State Has No Compelling Interest in
TABLE OF AUTHORITIESChurch of the Lukumi Babalu Aye v.
City of Hialeah, 508 U.S. 520 (1993).......8, 12
Employment Division, Department of Human
Loving v. Virginia, 388 U.S. 1 (1967).........10
Rourke v. New York State Department of
Sherbert v. Verner, 374 U.S. 398 (1963)........8
Thomas v. Review Board of the Indiana
Wisconsin v. Yoder, 406 U.S. 205 (1972)........8
Zablocki v. Redhail, 434 U.S. 374 (1978)......10
Constitutional ProvisionsU.S. Constitution, First Amendment.....1, passim
New York State Constitution, Article
StatutesDRL §236 (B)(5)(h) and DRL 236
DRL §253...............................3, passim
PRELIMINARY STATEMENT AND INTEREST OF THE AMICUS CURIAE
The statutes under attack in this case -- DRL §236 (B)(5)(h) and DRL §236 (B)(6)(d) (referred to collectively hereinafter as the "challenged statutes" or the "1992 Get Law") -- were designed to help address a serious social problem in the observant Jewish community: that of the modern day "agunah", the Jewish wife who remains "chained" to a failed marriage due to her husband's unjustified refusal to give her a religious divorce (known as a "get"). Tragically and ironically, however, implementation of the 1992 Get Law in cases like this one would exacerbate the very problem the law seeks to alleviate, by making it difficult if not impossible for a rabbinic tribunal (known as a "beth din") to arrange a get for couples like Mr. and Mrs. Becher. But the tragedy is entirely avoidable, thanks to the genius of our federal and state constitutions, whose respective free exercise clauses preclude application of the challenged statutes in a manner that would impose a substantial burden on the parties' ability to go through the process of religious divorce.
Amicus curiae Agudath Israel of America ("Agudath Israel") is a national Orthodox Jewish organization. It was founded in 1922, and has chapters and constituents in New York and all across the United States. Its policies are determined by a board of prominent senior rabbis.
Agudath Israel has long supported the notion that secular law has a proper role to play in helping address the tragic agunah problem. But that role is a sensitive and limited one; if the secular law is applied in a manner that actually imposes its own additional barrier to the get process, the state has compounded the tragedy and overstepped its constitutional bounds. Agudath Israel respectfully submits that application of the 1992 Get Law in cases like this one would represent precisely such an overstep.
The Essence of the Free Exercise Claim
Defendant-appellant Mr. Becher raises what appear to be three distinct free exercise contentions: the challenged statutes force him to do a religious act (defendant-appellant's principal brief at 51-52, reply brief at 19); they deny him the right to seek a civil divorce (reply brief at 18-19); and they burden his ability to give Mrs. Becher a get (principal brief at 52-53). This third contention will be the focus of the instant amicus curiae presentation -- for, in Agudath Israel's view, it is the 1992 Get Law's impact on the ability of a religiously observant Jewish couple like the Bechers to be religiously divorced that constitutes its most serious infringement of constitutional liberty.
As set forth in the September 9, 1997 affirmation of David Zwiebel submitted in support of Agudath Israel's motion for leave to file an amicus curiae brief (the "Zwiebel Aff."), a get, to be valid under Jewish law, must be given by a husband voluntarily. (Though not directly relevant to the discussion here, it must also generally be received by the wife voluntarily.) The general rule is that while pressure may be applied to convince an unjustly recalcitrant husband to give his wife a get, the pressure may not be so overbearing as to deprive the husband of his free will. The line between permissible pressure and impermissible duress is narrow but critical; if Jewish law determines that it has been crossed, any resultant get would be void. If a woman "remarries" on the basis of a get given under impermissible duress, Jewish law would regard her relationship with her new "husband" as adulterous, and any children born of such relationship would bear the stigma and disability of illegitimacy. [Zwiebel Aff. ¶¶4-5.]
New York's first legislative effort to address the agunah problem by authorizing the secular courts in civil divorce proceedings to take into consideration the couple's religious marital status was enacted in 1983, and is embodied in DRL §253 (hereinafter the "1983 Get Law"). Under this law (which is not directly at issue in this case -- and, under the free exercise analysis presented herein, would be unaffected by the outcome of this case), a plaintiff in a civil divorce proceeding must file an affidavit prior to the entry of final judgment of divorce that "to the best of his or her knowledge, he or she has ... taken all steps solely within his or her power to remove all barriers to the other party's remarriage." The overwhelming if not unanimous consensus among contemporary scholars of Jewish law is that the incentive to give a get created by the 1983 Get Law does not cross the religious line from permissible pressure to impermissible duress. Indeed, as the prime moving force behind the 1983 Get Law, Agudath Israel preliminarily consulted with a broad range of respected rabbinical authorities to ascertain the religious validity of any get given to enable the civil divorce plaintiff to file the necessary affidavit; it was only after that religious issue was favorably resolved that the 1983 Get Law was introduced and eventually enacted. [Zwiebel Aff. ¶¶6-7.]
In contrast, with respect to New York's second legislative effort to help alleviate the agunah problem -- the 1992 Get Law embodied in DRL §236 (B)(5)(h) and (B)(6)(d), pursuant to which a court called upon to make equitable distribution of marital assets or establish maintenance must take into consideration the effect of a barrier to remarriage on any of the enumerated statutory factors governing equitable distribution and maintenance -- many highly respected rabbinical authorities have ruled that these laws could make it impossible under certain circumstances for a beth din to arrange a get. In the religious view of these authorities, a husband who gives his wife a get in order to avoid losing assets in equitable distribution or maintenance is acting under duress, and lacks the free will necessary to effectuate a valid get. [Zwiebel Aff. ¶8.].
In this case, Mr. Becher has clearly stated that he accepts and adheres to the religious view that application of the challenged statutes would make it impossible for him to go forward with the get process. [Record on Appeal at 72.] Even were Mr. Becher now to appear before a beth din and state that he is prepared to give Mrs. Becher a get to avoid losing his assets in equitable distribution and maintenance, the beth din would surely refuse to arrange the get out of concern that the law has negated Mr. Becher's free will. Indeed, given Mr. Becher's record testimony in this proceeding, it is highly unlikely that a beth din would arrange the get even were Mr. Becher to insist that his willingness to go through with the process has nothing to do with his fear of losing assets in equitable distribution and maintenance; having announced that he perceives a gun pointed at his head, Mr. Becher would have a hard time persuading any beth din that the gun has nothing to do with his decision to give a get.
To compound the problem, the court below refused to allow Mrs. Becher to waive her rights under the challenged statutes. Like it or not, by golly, she will be the "beneficiary" of the 1992 Get Law's righteous solicitude of her interests -- despite the fact that its application will likely prove harmful to her interests. The no-waiver doctrine not only prolongs the agony of her already lengthy wait for trial ("I beg this court to not permit any further delay of the trial," Record on Appeal at 76); it leaves her no means of avoiding the burden the challenged statutes impose on her husband's ability to give her a get.1
The bottom line, therefore, is that application of the 1992 Get Law in this case will impose a substantial burden on the parties' ability to go through with a religious divorce. What that would mean, in real life terms, is that the Bechers, and others like them, would remain in indefinite marital limbo. Such a result would be tragic -- and, Agudath Israel submits, unconstitutional.
THE 1992 GET LAW SUBSTANTIALLY BURDENS THE PARTIES' FREE EXERCISE RIGHTS, AND IS UNCONSTITUTIONAL AS APPLIED TO THE FACTS OF THIS CASE
Agudath Israel respectfully offers three brief points to help the Court evaluate the free exercise claim at issue here: (1) As a threshold matter, contrary to the implication of the decision below, there is no constitutional impediment that precludes consideration of the free exercise issue; the Court can engage in such consideration without getting entangled in intricate issues of religious law. (2) The appropriate standard by which the free exercise claim should be evaluated is the "strict scrutiny/compelling interest" test, notwithstanding recent legal developments that have restricted the scope of federal free exercise protection. (3) The state has no compelling basis, perhaps not even a rational basis, to implement the challenged statutes under the circumstances of this case.
1. Consideration of the Free Exercise Issue Does Not Require the Court Unconstitutionally to Enmesh Itself in a Religious Dispute
It is hornbook law that "first amendment values are unacceptably compromised when civil courts undertake to settle religious issues." L. Tribe, American Constitutional Law (2d Ed. 1988), at 1235. The court below apparently was concerned that adjudication of Mr. Becher's free exercise claim would require it to delve into the debate over the religious validity of a get given to avoid the loss of assets in equitable distribution and maintenance; "[w]hile such a task might prove interesting, it is something which the Court clearly may not constitutionally tackle." (Slip Opinion at 7; Record on Appeal at 13.)
But no such tackling is necessary. The issue in free exercise cases like this one is not religious validity, but religious sincerity. If the free exercise claimant is sincere in his belief that his religious practice would be substantially burdened by operation of a governmental action, it is entirely irrelevant for constitutional purposes whether his belief is doctrinally right or wrong.
Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1980), illustrates the point well. At issue was an individual's right to collect unemployment insurance after quitting his job in a machinery company that had transferred him to a department that produced military parts. His free exercise claim -- that his religious beliefs forbade participation in the production of armaments -- was challenged in part because other members of his faith community apparently had no compunctions about producing military parts. Rejecting this challenge, the Supreme Court emphasized the personal nature of the individual's free exercise claim:
Mr. Becher's free exercise claim here is anything but "bizarre" or "clearly nonreligious in motivation"; it reflects the religious opinions of the most respected rabbinical authorities in the world. More importantly for this Court's purposes, it reflects Mr. Becher's own sincerely held belief. The refusal of the court below to consider an "analysis allegedly based upon Halacha" (Slip Opinion at 7, Record on Appeal at 13) betrays its misapprehension of one of the foundation principles of free exercise jurisprudence.
2.The Appropriate Standard of Free Exercise Review is the "Compelling Interest" Test
When the application of secular law substantially burdens the free exercise of religion, "[t]he state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest." Thomas v. Review Board, supra, 450 U.S. at 718. See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972) ("The essence of all that has been said and written on the subject is that only those interests of the highest order... can overbalance legitimate claims to the free exercise of religion," id. at 215).
It is quite true, as plaintiff-respondent points out, that Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), in which the Supreme Court found no First Amendment protection against a neutral anti-drug law of general applicability, has significantly narrowed the range of cases in which federal free exercise claims will be strictly scrutinized by application of the compelling interest test. Significantly narrowed, but not entirely eliminated -- for even in the post-Smith era, the First Amendment requires strict scrutiny if: (a) the law is specifically targeted at a religious practice; or (b) the law burdens free exercise rights in conjunction with some other constitutionally protected right. As elaborated below, we believe that this case satisfies both those criteria. There is, moreover, a third basis, also elaborated below, for applying the strict scrutiny/compelling interest test in this particular case: (c) the independent free exercise protections guaranteed by the New York State constitution, which are unencumbered by the Smith limitations.
(a) The 1992 Get Law is Specifically Targeted at a Religious Practice: Even in the aftermath of Smith, "[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny." Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993). Thus, in the Hialeah case, the Supreme Court applied the compelling interest test to invalidate a series of local ordinances which, though neutral on their face, were clearly targeted at a religious community's practice of ritual animal slaughter.
As the court below acknowledged, the 1992 Get Law, as well as the 1983 Get Law, though neutral on their face, "were enacted to address the improper withholding of the Get by men who would hold the Get as ransom to receive benefits from the women such as monetary payout or custody of the children of the marriage." [Slip Opinion at 2-3, Record on Appeal at 8-9.] Given this clear purpose of the challenged statutes, it simply strains credulity to classify them as neutral laws of general applicability.
To be clear, Agudath Israel does not contend that there is anything inherently improper in a legislative effort to ameliorate a problem of general social concern that exists within a particular religious community. Where, however, that effort results in a substantial burden on free religious exercise, Hialeah teaches that the First Amendment -- even in its more limited post-Smith interpretation -- demands strict scrutiny through the compelling interest test.
(b) Application of the 1992 Get Law Would Inhibit the Parties' Ability to Remarry, Thereby Impinging on Due Process Rights and Free Exercise Rights Simultaneously: The Smith Court posited that in "hybrid situation[s]" -- cases involving "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections" -- "the First Amendment bars application of a neutral, generally applicable law to religiously motivated action." Smith, supra, 494 U.S. at 881-82.
This case presents precisely such a "hybrid situation." The burden the 1992 Get Law would impose on the Bechers, and other similarly situated observant Jewish couples, impinges upon their ability to obtain a religious divorce -- and also, by definition, their ability to remarry. As the Supreme Court noted some 30 years ago "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Loving v. Virginia, 388 U.S. 1, 12 (1967); see also, e.g., Zablocki v. Redhail, 434 U.S. 374, 385 (1978) ("[R]ecent decisions have established that the right to marry is part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause.").
Indeed, the entire predicate of the 1992 Get Law is its concern about any "barrier to remarriage" a party might face after the civil divorce. Where, as here, application of the law would create its very own barrier to remarriage by burdening the parties' ability to be religiously divorced, even Smith would insist that the state must meet the strict scrutiny/compelling interest test.
(c) The New York State Constitution's Equal Protection Clause is Unencumbered by the Limitations of Smith and Should be Interpreted More Broadly: At issue in Smith was the scope of protection offered by the federal constitution's free exercise clause. The free exercise claim in this case, however, rests not only on the U.S. constitution but on the New York State constitution -- specifically, Article I Section 3, which provides in pertinent part as follows: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind... " At least one New York court has already held that the limitations of Smith do not apply to the state constitution's free exercise clause. In Rourke v. New York State Department of Correctional Services, 159 Misc. 2d 324 (Sup. Ct. Albany Co. 1993), aff'd 201 A.D. 2d 179 (3d Dept. 1994), the court upheld the free exercise claim of a corrections officer who had been discharged for refusing, on religious grounds, to cut his hair in accordance with departmental guidelines. In reaching its conclusion, the court expressly found, 159 Misc. 2d at 327-28, that the state constitution afforded a greater level of free exercise protection than the Smith - smothered First Amendment:
Accordingly, even if the federal constitution's free exercise clause does not impose the compelling interest test under the circumstances of this case -- i.e., if the 1992 Get Law is somehow deemed a neutral law of general applicability, and if for some reason the law's burden on free exercise is not considered in conjunction with its burden on the fundamental right to marry -- the state constitution imposes its own requirement of strict scrutiny.
3. The State Has No Compelling Interest in Applying the 1992 Get Law Under the Circumstances of this Case
"The compelling interest standard that we apply once a law fails to meet the Smith requirements is not 'water[ed]... down' but 'really means what is says.' A law that targets religious conduct for distinctive treatment or advances legitimate governmental interest only against conduct with a religious motivation will survive strict scrutiny only in rare cases." Church of Lukumi Babalu Aye, supra, 508 U.S. at 546. This is not one of those rare cases.
Agudath Israel would readily concede, and in the context of promoting the 1983 Get Law has affirmatively contended, that the state does have a compelling interest in helping alleviate the tragic problem facing religiously observant women whose recalcitrant spouses maintain a barrier to their remarriage by unjustly withholding a get. That interest is surely undermined, however, when the state acts in a manner -- albeit with the best of intentions -- that makes it even more difficult for the agunah to receive her get and eventually achieve the social and economic benefits of remarriage.
Application of the 1992 Get Law in this case would harm, not promote, the state's interest in helping Mrs. Becher gain her marital freedom and enhance her future economic prospects as another breadwinner's potential mate. We question whether the state can advance even a rational basis, let alone a compelling interest, for taking a step that would make an agunah's barrier to remarriage even more impregnable than it already is.
For the reasons set forth herein, amicus curiae Agudath Israel respectfully urges the Court to declare the 1992 Get Law unconstitutional as an abridgement of federal and state free exercise rights. In so doing, the Court will strike a blow for religious freedom, and at the same time ensure that laws enacted to help alleviate the agunah problem will not have the perverse effect of exacerbating the problem.
Dated: October 7, 1997
1. Agudath Israel notes its view, without elaboration, that the court below erred as a matter of law in refusing to accept Mrs. Becher's waiver. She understood her rights under the law and knowingly relinquished them. Her wishes should have been respected.
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