Refusal to Grant a Jewish Divorce As Infliction of Emotional Distress

REFUSAL TO GRANT A JEWISH DIVORCE AS INFLICTION OF EMOTIONAL DISTRESS

ABOUT THE AUTHOR: Noah Gradofsky is currently completing his fourth and final year as an evening law student at Rutgers University School of Law - Newark. Noah is also studying to be a Rabbi at the Institute of Traditional Judaism. Noah has a BA in Talmud from the Albert A. List College of Jewish Studies of the Jewish Theological Seminary, and a BA in Political Science/Economics from Columbia University

CONTACT INFORMATION: Noah Gradofsky 735 Elm Ave. Apt. 4E Teaneck, NJ 07666 (201) 287-1429 Fax: (212) 894-3748x2210 [email protected]

ABSTRACT: In Jewish marital law, the Husband possesses the sole discretion to initiate divorce. This means that even in the case of a civil divorce, a woman is not free to remarry under Jewish law until her Husband initiates a religious divorce. Unfortunately, some Jewish husbands use this fact as a tactical advantage in as a means of either punishment or extortion. American law has from time to time been used to resolve this difficultly, either by use of statutory provisions or by enforcement of prenuptial agreements requiring that a Jewish divorce be granted in case of a civil divorce. . These solutions can only be partial, because statutory law applies only in the several jurisdictions who have enacted such laws and many married couples do not have adequate prenuptial agreements. The author proposes that another partial solution to the problem may be found in tort law. Husbands who vindictively refuse a Jewish divorce to their wives may be found liable for infliction of emotional distress. The author examines the validity of this argument both in terms of tort law and the constitutionality of applying tort law to a person’s refusal to engage in a religious divorce. Table of Contents

A. Introduction...... 2 B. The Jewish Divorce...... 4 What is a get, and how is it executed?...... 4 2. Discretionary and Required Gittin...... 6 3. Compelling a Get...... 7 C. The Agunah’s Weapons...... 7 1. Remedies in Contract Law...... 7 2. Statutory Remedies...... 7 3. Tort Law Remedy: Infliction of Emotional Distress...... 7 D. The Tort of Emotional Distress...... 7 1. Extreme and Outrageous Conduct...... 7 2. Intent or recklessness...... 7 3. Causation...... 7 4. Distress...... 7 5. Summary of the Emotional Distress Claim...... 7 6. Remedies...... 7 I. Damages...... 7 II. Equitable Relief...... 7 III. A New Suggestion – “Unclean Hands.”...... 7 IV. Summary of remedy options...... 7 E. Constitutionality of a Tort Remedy for Agunot...... 7 1. Threshold Question: Is Jewish Divorce Law and Procedure Religious?...... 7 2. Establishment Clause Concerns...... 7 3. Free Exercise Concerns...... 7 I. Compelling State Interest...... 7 II. Sincerely Held Beliefs...... 7 F. Conclusion...... 7

2 A. INTRODUCTION

This is a paper about the ties that bind, and the effort to untie them. More importantly, this is a paper about religious ties that bind, and an attempt to use the secular courts as a tool to untie the knot. A divorce under Jewish law has a vastly different dynamic than a civil divorce in

America. In American law, the court has an important role in allowing or demanding a divorce.

In Jewish law, the husband and wife do not need a Rabbi or a judge. All they need is each other.

The husband is almost entirely at his discretion to issue a bill of divorce, known as a get. The wife, in turn is at her discretion to accept the get, thereby completing the dissolution of the marriage.1 Thus, both the husband and wife are significantly at each other’s mercy to receive a divorce under Jewish law.

The effects of denying a divorce can be severe. Neither party may remarry without terminating their previous marriage.2 For the woman, the problem is even more acute. Without a get, any children she might have from another marriage would be mamzerim (bastards) and under traditional Jewish law (halacha) could not marry anyone other than another mamzer. Both the husband and wife in divorce have has significant power over their former spouse, as they hold the key to religious divorce. If one of the pair chooses not to participate in the get, the other is placed in a precarious situation. For the most part, the victim in this game is the woman. A woman who is bound against by her husband’s refusal to give a get is called an agunah (chained woman). In rare instances, the shoe is on the other foot, as the husband attempts to issue a get,

1 See 6 ENCYCLOPEDIA JUDAICA, 130 “Divorce” [hereinafter referred to as E.J.]. Note that the husband’s discretion in issuing a divorce seems to extend to biblical and even pre-biblical times. The wife’s discretion in accepting a divorce began with the herem de-Rabben Gershom (the “excommunication decree” or our Rabbi Gershom) circa approximately 1,000 C.E.. 2 See id. The history is again the same. While a woman has seemingly always been prohibited from polyandry, it was only with the herem de-Rabbenu Gershom that bigamy was officially outlawed within the Rabbinic sect of Judaism (interestingly, the Qumran sect associated with the Dead Sea Scrolls viewed polygamy as reprehensible more than a millenium before this. See THE DEAD SEA SCROLLS 55 (Michael Wise et al. eds., 1996).

3 but the wife refuses to receive it.3 Within this paper, I will often refer to this problem as the

“agunah problem;” as this is the terminology generally used in the Jewish community. The reader is reminded that the same problems may also apply to a man (an igun, if you will).

There are two reasons that one would refuse to complete a Jewish divorce. One is sheer vindictiveness. If one of the two spouses is not interested in a Jewish divorce (either because they lack religious interest or because they have no immediate plans to remarry), that spouse can refuse to give a get in order to hurt the other spouse, who has greater interest in receiving a

Jewish divorce. The second reason for a spouse’s recalcitrance in giving a get is that a get can be used as a bargaining chip. As will be shown below, time after time there are cases where a spouse is willing to complete a Jewish divorce, on the condition of agreements over child custody or financial matters.4

The goal of this paper is to explore the tort of infliction of emotional distress as a potential civil court remedy to the problem of refusal to issue or accept a get. In order to explore this remedy, I will first outline some nuances of the Jewish divorce process that will likely be significant considerations in the successful use of this tort. Next, I will briefly explore several remedies that have been used to solve the agunah problem. The benefits and detriments of these approaches will be explored, so as to gain an understanding for where a tort claim might fit in within the continuum of remedies for the problem. Subsequently, the requirements of an emotional distress tort will be explored, and it will be argued that many cases of refusal to participate in the get process will fit the requirements of the emotional distress tort. Following this tort analysis, this paper will question whether the recognition of an emotional distress tort in the context of refusal to grant a uniquely Jewish divorce would violate either the Free Exercise or

3 See, e.g. Rubin v Rubin, 75 Misc 2d 776, 348 NYS2d 61 (1973). 4 See, e.g. Goldman v. Goldman, 554 N.E.2d 1016 (Ill. App. 1990); Burns v. Burns, 538 A.2d 438, 223 N.J. Super. 219 (Ch. Div. 1987); Perl v. Perl, 126 A.D.2d 91 (1987).

4 Establishment clauses of the United States Constitution.5 Finally, this paper will question whether it is in the best interests of the American-Jewish community to pursue recognition of an emotional distress tort.

B. THE JEWISH DIVORCE

WHAT IS A GET, AND HOW IS IT EXECUTED?

A get is a Jewish bill of divorce. The method of Jewish divorce is prescribed as the method of divorce by Deuteronomy 24:1.

When a man takes a woman and marries her, and if she should fail to find favor in his eyes, because he finds something offensive in he, and he writes for her a document of separation, and place it in her hands and send her from his house.6

The exact description of the “document of separation” referred to in the Bible is unknown. The modern equivalent to this document is the get. As described in Deuteronomy, divorce is at the sole discretion of the husband, except that the husband’s choice may not be made willy-nilly.

There must be some negative quality that the husband has found in the woman in order for him to divorce her.7 The Bible describes only two situations where the husband may not give a divorce. The first case is where the husband has wrongfully accused his wife of prenuptial intercourse, or where the man had violated a virgin who had not been engaged to another man.8

The modern system of Jewish divorce has not diverged greatly from the biblical description. The divorce may only be initiated by having the husband commission the writing of a get “for him, for her and for the purpose of divorce.”9 The materials used for writing the get

5 See U.S. Const. AMEND. I. 6 The context of this verse deserves some attention. This verse actually describes rather than prescribes the format of a divorce. It is part of the reporting of facts of a hypothetical case. The case is where a woman is divorced from one husband and then marries and divorces a second husband. The Bible, in Deuteronomy 24:4 rules that the woman may not remarry her original husband. 7 See E.J. 123-124. 8 See E.J.123 (quoting Deut 22:13-21 and Deut 22:28-29 respectively). 9 See E.J. 125. Note that technically speaking there is nothing in the Bible that indicates explicitly that a woman cannot initiate divorce.

5 must be owned by the husband. This is usually accomplished by having the scribe who will write the get formally declare the materials used to a gift from the scribe to the husband.10 It then must be delivered to the wife.11 With limited exception, both acts are at the discretion of the parties, and must be performed of the party’s free will.12 The process itself takes approximately two hours13. Once a get is delivered to the wife, it is then returned to the court, which tears the get in order to avoid possibilities of subsequent suspicion, and is then filed by the court.14 The wife is then given a receipt known as a petur (lit. “exemption).15

It must be stressed that neither party is required to personally participate in the get.

Judaism has a well established system of agency. In the get case, either party may establish an agent by signing a carefully worded document (known as a harsa’ah – a permission document) empowering someone else to act in his or her stead. It operates in a manner similar to a power of attorney. The document is executed in the presence of a court. “[T]he get takes effect only upon delivery thereof by the husband or his agent to he wife or her agent[.]”16 The process of appointing an agent is often done at a local restaurant over a cup of coffee.17

The text of the get itself should be given some attention. To say the least, it is a highly formulaic document. It is written in Aramaic. The text of the get must be written in exactly 12 lines.18 More than half of the text of a get is dedicated to specifying the identity of the parties

10 See E.J. 131. 11 See E.J. 131. 12 See E.J. 130. The exceptions to this rule will be discussed below. 13 Personal conversation with Dov Berger 5/23/00. Mr. Berger serves on a Rabbinic court on Riverside Drive in New York which supervises divorces. Breitowitz infra note Error: Reference source not found at 320 indicates that a get takes about an hour. 14 E.J.132. 15 Class with Rabbi Howard Jachter on the subject of divorce. The class was held at the Institute of Traditional Judaism on March 23, 2000. Rabbi Jachter is a member of the Bet Din (Rabbinic court) of America and an authority on Jewish divorce. 16 E.J. 132. 17 Class with Rabbi Howard Jachter supra note Error: Reference source not found. 18 Id.

6 and the location where the get was issued. The remaining text proclaims that the husband of his own free will19 has divorced his wife and made her free to marry someone else.20

2. DISCRETIONARY AND REQUIRED GITTIN.21

As mentioned above, both husband and wife are at their discretion to issue and accept a get. In some situations, however, the giving of a get is required under Jewish law. There are two types of situations which require giving a get. First, there are cases where some form of physical defect makes cohabitation or procreation impossible. Second, a get must be given where one of the parties has engaged in specific harmful conduct towards the other.22 For the most part, these situations apply both to requiring a man to issue a get or to require a woman to accept a get.

The case of physical defects which allow for the demand of a get are as follows.

Physical defects precluding cohabitation or procreation: 1. A contagious disease. 2. A physical condition that is revolting in the eyes of the spouse. 3. Sterility. This is defined as ten years of marriage without pregnancy. Additionally, the court must be satisfied that the divorce is not being sought for pecuniary reasons and that the complaining spouse has not “set his or her eyes on another.”

19 The claim of free will is left in the get even when the get has been coerced. See Greenberg-Kobrin, Michelle Greenberg-Kobrin, Civil Enforceability of Religious Prenuptial Agreements, 32 COLUM. J.L. & SOC. PROBS. 359, 367 (1999). 20 The following is the text of a standard Ashkenazi (eastern-European custom) get as translated by E.J. 131. Emphasis has been added to the substantive parts of the text: On the ... day of the week, the ... day of the month of ..., in the year ... from the creation of the world according to the calendar reckoning we are accustomed to count here, in the city ... (which is also known as ...), which is located on the river ... (and on the river ...), and situated near wells of water, I, ... (also known as ...), the son of ... (also known as ...), who today am present in the city ... (which is also known as ...), which is located on the river ... (and on the river ...), and situated near wells of water, do willingly consent, being under no restraint, to release, to set free, and put aside thee, my wife, ... (also known as ...), daughter of ... (also known as ...), who art today in the city of ... (which is also known as ...), which is located on the river ... (and on the river ...), and situated near wells of water, who has been my wife from before. Thus do I set free, release thee, and put thee aside, in order that thou may have permission and the authority over thyself to go and marry any man thou may desire. No person may hinder thee from this day onward, and thou art permitted to every man. This shall be for thee from me a bill of dismissal, a letter of release, and a document of freedom, in accordance with the laws of Moses and Israel. ... the son of ..., witness. ... the son of ..., witness EJ. 21 Gittin is the plural of get. 22 See E.J. 126-130.

7 4. Male impotence. Since this argument is based on a woman’s right to sexual relations23, no showing that the woman has previously had children or that she has not become pregnant in ten years with the husband is required. If there is evidence that medical treatment may cure the infirmity, the court will not immediately order the issuance of a get. Note that evidence corroborating the wife’s claim of impotence is required.24

In all these cases of physical defect, the claim is rendered moot if either the person knew about the defect at time of marriage, or that she became aware of the condition during marriage and unreasonably delayed her claim for divorce.25 The claims enumerated above only apply where the defect precludes procreation or cohabitation. All other defects, no matter how revolting, may only be grounds for divorce if the woman did not, and could not have known about these defects before the marriage. Additionally, the claim must be made within a reasonable time.26

The cases for coercion based on wrongful conduct of a spouse are:

1. Unjustified refusal of conjugal rights on the part of the husband.27 2. Unjustified refusal by husband to maintain his wife at least to minimum standards.28 In this case the wife may make a claim either for maintenance or for a divorce. The get will only be ordered after the husband has repeatedly ignored warnings to provide maintenance. 3. General offensive conduct such as repeated assault, abuse, quarrels. 4. Causing ones spouse to transgress Jewish law against his or her will. 5. Habitual immodesty on the part of the wife. 6. Evidence by testimony of two witnesses that indicates that the conduct on the part of the wife that has given the husband a strong suspicion that his wife has committed adultery. Note that this is grounds for either the husband or for the wife to demand a get.29 7. Habitual infidelity.30

23 Traditionally, the husband has three obligations to his wife. These are the obligation of sexual cohabitation and the requirement of the husband to provide food and clothing for his wife. 24 See E.J. 126-127. 25 See E.J. 127. Note that embarrassment about the condition may be considered reasonable grounds. 26 See E.J. 127. 27 See supra note 23. 28 See supra note 23. 29 See E.J. 128-130. 30 See Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, 51 Md. L. Rev. 312, 33 (1992). An expanded version of this article, BETWEEN CIVIL AND RELIGIOUS LAW: THE PLIGHT OF THE AGUNAH IN AMERICAN SOCIETY (1993) was published by Greenwood Press. The book also contains analysis of the “Second New York Get Law,” which didn’t exist at the time of the article. Citations in this paper are being made to the article, as the article is available on Westlaw.

8 In all but the last one of these cases. the get will not be ordered if the spouse can show repentance from those past deeds. If such is the case, the court will direct the parties to attempt reconciliation. This is so unless the court is convinced that such a delay would serve no purpose.31

Several key observations should be made concerning the situations where a party may be compelled to either give or accept a get. First of all, a court may be authorized to order the granting of a get, but may be unable to apply certain sanctions to compel the giving of the get.

A discussion of the issue of compulsion will follow. Second, though it is clear that the cases enumerated above are grounds for an order to give or accept a get, there is a great deal of factual consideration to be made before such an order can be issued. Some of those issues will be enumerated above. The existence of these factual questions should be of concern whenever an

American court determines that Jewish law demands giving a get. A court’s making such a finding would seem to entangle the court in religious determinations. This discussion will be taken up at greater length below.32

3. COMPELLING A GET

For the most part, a Jewish divorce must be made by mutual consent. Therefore, it is generally the case that a party may not be compelled to give a divorce. This is even true in many of the cases discussed above. If any circumstance exists that would obligate a party to accept divorce, the court will issue either an order of yotze or kofin. Yotze, means “he shall send out.”

This means the court has determined that a get should be executed. Kofin - “we force” - means that the conduct rises to a level where the court believes coercive measures to be appropriate. 33

31 See E.J. 128-130. 32 See infra text accompanying note 35 et. seq. 33 See Greenberg-Kobrin supra note Error: Reference source not found at 366.

9 Even in the case of yotze, a certain level of pressure is allowed, so long as it is not considered

“coercive.”34 Oftentimes pressures such as psychological pressure, boycotts, and advertising the spouses refusal to give a get will be used35. However, if the pressure is considered coercive, the get will be considered invalid, and no divorce has occurred. There is no apparent bright-line for what type of pressure is coercive. Instead, the question is whether the get was done by the person’s free will, or only under duress caused by an extreme threat. For instance, incarceration will likely be considered coercive. The same will be the case with heavy monetary finds that threaten to “wipe out” the offending party. On the other hand, light monetary coercion may not be considered coercive.36

Certain types of duress may be allowed in all cases. Coercion that arises out of an issue unrelated to the get does not invalidate the get. In a famous case, a certain husband who was in debtor’s prison was offered financial help by the wife’s family, on the condition that the husband grant a get. Since the husband was not incarcerated because of his failure to give a get, the

Rivash (a Spanish Rabbi) held that the husband was not deprived of his free will.37 Certain authors have suggested a corollary to this argument. They suggest that if the American court sanctions a party’s failure to submit to the bet din’s jurisdiction, rather than the failure to give a get, the sanction might be interpreted to be separable from the get.38 I am not convinced that this 34 See Breitowitz supra note Error: Reference source not found at 331. 35 See id. 335. 36 Personal conversation with Rabbi/Doctor Edward Gershfield 5/17/00. Rabbi Gershfield is the head of a bet din on Riverside Drive in New York that handles gittin. Rabbi Gershfield, is also an Associate Professor of Talmud at the Jewish Theological Seminary. Email correspondence with Rabbi Jachter, See supra note Error: Reference source not found, seemed to confirm this notion. While Rabbi Jachter in general describes monetary pressure as coercive, he noted that, “[T]he limited impact of a monetary fine might be a mitigating factor.” (Citing to Pitchei Teshuva, a leading commentary on Shulchan Aruch, the pre-eminent Jewish code of law. The comment of the Pitchei Teshuva appears in reference to Shulchan Aruch Even Haezer 134:5). See also Breitowitz supra note Error: Reference source not found at 406 footnote 420 (“Some authorities may take the position that because the penalty is a reasonable alternative, the decision not to pay, but to execute the get instead, becomes a matter of choice.”) Note that this means that whether or not a certain measure is coercive may depend on the amount of damages involved. The millionaire will not be coerced by a finding of $1,000 damages. The pauper, of course, will. 37 See Breitowitz article, supra note Error: Reference source not found at 335. 38 See e.g. Barbara J. Redman, Jewish Divorce: What Can Be Done in Secular Courts to Aid the Jewish Woman?, 19 Ga. L. Rev. 389, 482 (1985).

10 argument would hold up in a Jewish court. It is merely an attempt to sidestep the issue. The reason for any damages being assessed for failure to submit to bet din is because submitting to bet din is expected to lead to issuance of a get.

There is another form of pressure that is almost indisputably acceptable. There is a clear distinction between sanctioning the recalcitrant spouse and refusing to confer benefits on that spouse. For instance, denying a recalcitrant spouse enforcement of a separation agreement is unquestionably acceptable under Jewish law.39 There is a limit to the use of this approach:

This is true, however, only if the agreement provides a complying spouse with more benefits than he or she would receive under the jurisdiction's law of equitable distribution absent express agreement and, conversely, where failure to grant a get leaves the recalcitrant party in no worse a position. To the extent that failure to execute a get leaves the violator with less than he otherwise would have had under state law, such an agreement appears indistinguishable from any other self-imposed penalty clause, and the execution of a get under such circumstances would appear to be improper.40

The result of this analysis is clear. For any remedy in the civil law to be effective, it must be tailored so as not to be coercive. Later, I will discuss the merits of money damages and orders of specific performance orders.41 In balancing these options, the person pursuing this tort should be in close contact with a learned scholar of Jewish law, to insure that the relief sought does not rise to the level of coercion.

C. THE AGUNAH’S WEAPONS

To date, several legal remedies have been used in order to discourage the withholding of a Jewish divorce. The most often used remedy is contract law. Under these approaches, a claim is made that the recalcitrant spouse is in some manner contractually obligated to provide his or her spouse a get. Another remedy, which is in use in New York is statutory law that considers

39 See Breitowitz supra note Error: Reference source not found at 360. 40 See id. at 360-361. 41 See infra p. 25 et seq.

11 the refusal to give a get when decisions regarding the civil divorce are made. These two remedies will be discussed below. The discussion will show that these remedies are partial at best, and unconstitutional at worse. Thus, the addition of a tort remedy will quite likely add another useful tool in an incomplete collection of methods of drawing out a get.

1. REMEDIES IN CONTRACT LAW

Contract law remedies to the agunah problem take several forms. Some agreements are formed before the marriage. These most often include promises to give a get in the case of a civil divorce, or a promise to refer a divorce case to a bet din in order to determine what should be done about the Jewish marriage.42 Other courts have gone as far as to recognize the traditional Jewish marriage document (ketubah) as an agreement to give a get in certain cases43.

Others cases have involved separation agreements that provided for cooperation in a Jewish divorce. These agreements have been applied so as to either order specific performance of the agreement,44 or at least to preclude enforcement of the rest of the separation agreement pending the completion of a Jewish divorce.45 The contract law avenue has been quite helpful to agunot.46

This is so because from a Constitutional standpoint courts have found that they could enforce these agreements by referring to “neutral principles of law,” thus avoiding major Establishment

Clause concerns.47

42 See e.g. Avitzur v. Avitzur, 58 N.Y.2d 108, 114 N.E.2d 136 cert denied 104 S.Ct. 76 (1983)(4-3). 43 See e.g. Goldman v. Goldman, 554 N.E.2d 1016 (Ill. App. 1990); Burns v. Burns, 538 A.2d 438, 223 N.J. Super. 219 (Ch. Div. 1987); Minkin v. Minkin, 434 A.2d 665, 180 N.J. Super. 260 (Ch. Div. 1981); but see Victor v. Victor 866 P.2d 899 (Ariz. 1993); and Aflalo v. Aflalo, 685 A.2d 523, 295 N.J. Super. 527 (Ch. Div. 1996). 44 See e.g. Scholl v. Scholl, 621 A.2d 808 (Del. Fam. Ct. 1992); Waxstein v. Waxstein, 90 Misc.2d 784, 395 N.Y.S.2d 877 (1976); Margulies v. Margulies, 344 N.Y.S.2d 482 (N.Y. App. Div.), appeal dismissed, 307 N.E.2d 562 (N.Y. 1973). 45 See e.g. Pal v. Pal, 356 N.Y.S.2d 672, 45 App. Div. 2d 738 (1974); Rubin v Rubin, 75 Misc 2d 776, 348 NYS2d 61 (1973). 46 Agunot is the plural or agunah. 47 See Avitzur v. Avitzur, 58 N.Y.2d 108, 114-115, 114 N.E.2d 136, 138 cert denied 104 S.Ct. 76 (1983)(4-3) (citing Jones). A fuller discussion of the constitutional issues of the contracts approach appears infra text accompanying note Error: Reference source not found et. seq.

12 The validity of this approach under Jewish law requires some discussion. Even though the parties may have made an agreement to give a get so that any enforcement against them has been self-imposed, there is still general consensus that such enforcement can invalidate a get as not having been given of free will.48 One useful solution is to have a court order not the giving of a get, but submission of the parties to the jurisdiction of a bet din.49 If this is done, the bet din can have its discretion to choose what sanctions are appropriate, and those sanctions could be enforced in civil court. The effectiveness of this solution is limited only by the willingness of the bet din to impose sanctions. Clearly, this solution does as much as the person seeking the get should ever want done. The problem with this approach is that many times the agreement to arbitrate in bet din will have to be (and some times has been) divined out of vagaries of the agreement.50 This problem can be limited by contracts that explicitly agree to submit the matter of a Jewish divorce to bet din.

Another positive application of contract law is that when a separation agreement includes an agreement either to give a get or to submit to jurisdiction of bet din, failure to comply with either of those stipulations has been found to be grounds to hold off enforcement of other parts of said agreement.51 Such a result is indisputably acceptable pressure under Jewish law.52

Contract law is a fairly useful tool for encouraging Jewish divorces. It provides for some powerful remedies that are both acceptable in Jewish law, and are also apparently constitutional.53 The clearest drawback to the to the contract approach is a truism. Enforcement

48 See Breitowitz supra note Error: Reference source not found at 359-360. 49 See id at 360. 50 See id. citing Burns v. Burns, 538 A.2d 438, 223 N.J. Super. 219 (Ch. Div. 1987). 51 See supra note Error: Reference source not found. 52 See supra text accompanying note Error: Reference source not found. 53 See infra p. 3 et. seq. I have held off the major discussion of this issue until later, as that discussion will lead to arguments for the constitutionality of a tort remedy.

13 of a contract requires a contract to exist in the first place54. Too many couples when marrying are unlikely to sign an agreement to arbitrate their divorce. It simply doesn’t “feel right” to discuss divorce at the time of marriage. Separation agreements are sometimes difficult because they are often drawn up at a time of great animosity between the parties. Thus, while a contract that is in existence may be a powerful tool, contract law in itself only provides a partial solution to the get problem.

2. STATUTORY REMEDIES

In New York, two provisions of the Domestic Relations Law have been specifically designed to encourage the giving of a get.55 The first “New York Get Law,” enacted in 1983, and subsequently amended in 1984 reads in part:

1. This section applies only to a marriage solemnized in this state or in any other jurisdiction by a person specified in subdivision one of section eleven of this chapter. 2. Any party to a marriage defined in subdivision one of this section who commences a proceeding to annul the marriage or for a divorce must allege, in his or her verified complaint: (i) that, to the best of his or her knowledge, that he or she has taken or that he or she will take, prior to the entry of final judgment, all steps solely within his or her power to remove any barrier to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision. 3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.56

The constitutionality of this statute can hardly be discussed because it has yet to come under challenge for First Amendment violations.57 The statute has been criticized by scholars on

54 Note that some cases have found the standard ketubah to contain some contractual obligations pertinent to this issue. See supra note Error: Reference source not found. 55 This sentence should set off constitutional bells and whistles immediately. 56 N.Y. Dom. Rel. Law § 253 (McKinney 2000). 57 Id.

14 constitutional grounds.58 It has, on the other hand, “proven effective in motivating some recalcitrant spouses to give a get,” according to Rabbi Howard Jachter, a member of the Bet Din of America and an authority on gittin.59

Several issues should be noted about this statute. First, since it constitutes a withholding of the state benefit of divorce, rather than “punishing” the husband, it has met with considerable approval amongst leading Rabbis.60 Second, we should note several major shortcomings of this statute:

1. The statute has no effect on those who have already been granted a divorce. 2. The state only applies to the spouse that institutes the suit for divorce. 3. The statute only applies to those originally married in a religious ceremony. This means those parties who have become religious during their marriage will not be afforded protection. 4. "[B]arriers to remarriage" are defined as barriers that exist "under the principles held by the clergyman or minister who has solemnized the marriage," thus excluding those not married by an orthodox or Conservative Rabbi. Reform Judaism does not require a get in order to be remarried.61

In 1992, New York added another statute designed to encourage the giving of a get. This law provides that “the effect of a barrier to marriage” as defined in Domestic Relations Law §

253 should be considered in making determinations regarding the distribution of marital property

62 and the amount and duration of maintenance63. This second “get law” is subject to far greater criticism on First Amendment grounds.64 More importantly, the law can be construed as either a financial penalty on the husband or “a provision for a recalcitrant husband to provide his wife

58 See Edward S. Nadel, New York’s Get Laws: A Constitutional Analysis, 27 COLUM. J.L. & SOC. PROBS. 55, 71-72 (1993). 59 Administering Outside Pressure to Give a Get: Communal Pressure, the New York State Get laws, and Israeli Rabbinical Courts (unpublished manuscript)(available via e-mail upon request. E-mail [email protected]) [Hereinafter referred to as “Jachter manuscript.”] 60 See Breitowitz supra note Error: Reference source not found at 396-398. See also discussion supra, text on footnote Error: Reference source not found-Error: Reference source not found. 61 See Nadel, supra note Error: Reference source not found at 73-74. 62 See N.Y. Dom. Rel. Law § 236B(5)(c) (McKinney 2000). 63 See N.Y. Dom. Rel. Law § 236B(6)(d) (McKinney 2000). 64 See Nadel supra note Error: Reference source not found at 74-78.

15 with monetary support.”65 (emphasis in original). The former reading would cause any get given under this law to be viewed as coerced and invalid. The latter reading would not invalidate the get.66 These divergent possible readings leaves this get law in a very questionable light under Jewish law. The second “New York Get Law,” has one advantage over the first in that it covers both parties regardless of who files for divorce. The other major structural disadvantages that were present in the first get law still remain. Neither of the two laws provide any coverage for anyone who is divorced, and both laws apply only to those who were married in a wedding presided over by an Orthodox or Conservative Rabbi.

The first of New York’s get laws provides meaningful bargaining power against the recalcitrant spouse who files for divorce. The second law attempts to provide aid to either party in the divorce. The law is subject to greater constitutional and halachic (Jewish-law) infirmities.

When discussing the use of contract law as a remedy to the agunah problem, I noted that the biggest problem with that approach is that there must be a contract between the two parties.

With the statutory approach, a similar truism indicates a great infirmity of the statutory approach.

Only New York has passed laws concerning gittin, and I don’t imagine that many other states will be following suit. Thus, the statutory approach will be quite limited in its reach.

3. TORT LAW REMEDY: INFLICTION OF EMOTIONAL DISTRESS

Several scholars have suggested the tort of infliction of emotional distress67 may be applicable to the case of a former spouse refusing to participate in the get process.68 Such an

65 See Jachter manuscript supra note Error: Reference source not found. By monetary support, Rabbi Jachter means alimony. If the statute is read as prescribing a greater amount of alimony, that would not contradict Jewish law which requires a man to make provisions for his ex-wife. 66 See id. 67 See RESTATEMENT (SECOND) OF TORTS § 46 (1965). 68 See e.g. Breitowitz supra Error: Reference source not found at 397-407; Redman supra note Error: Reference source not found at 416-424; David M. Cobin, Jewish Divorce and the Recalcitrant Husband – Refusal to give a Get as Intentional Infliction of Emotional Distress, 4 J.L. & RELIG. 405 (1986).

16 argument would present a potentially “neural principle of law” that could be applied to analyze the refusal to give a get.69 The merits of the infliction of emotional distress argument will be discussed in the next section. For now, we should note some distinct advantages to a tort claim.

Most importantly, the tort claim requires neither the existence of a contract70 nor the existence of a statute. Several other advantages exist over the current New York statutes. The tort claim need not be in connection with a currently pending divorce suit.71 Additionally, the tort can stand regardless of what the religious convictions of the party or their clergyperson was at the time they were married.72 With these thoughts in mind, it has come time to explore the emotional distress tort and its bearing on the agunah situation.

D. THE TORT OF EMOTIONAL DISTRESS

The tort of emotional distress is one that arose out of academic rather than judicial innovation.73 This tort, which is accepted by almost every state,74 allows for recovery for emotional distress caused by another, even when said emotional distress is not accompanied by physical harm.75 As formulated by the second Restatement, the tort of emotional distress provides:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.76

69 See Breitowitz note Error: Reference source not found at 404-405. 70 See Redman supra note Error: Reference source not found at 417-418. 71 See Redman supra note Error: Reference source not found at 417-418. 72 See id. at 421 footnote 181 (“The wife who becomes religious after the civil divorce will still be able to make a case, albeit not as easily as a wife who was always religious.”). 73 See Givelber xxx 42. 74 See Breitowitz, supra note Error: Reference source not found at 398. 75 See RESTATEMENT (SECOND) OF TORTS § 46 cmt. b.(1965). 76 See RESTATEMENT (SECOND) OF TORTS § 46.

17 In theory, four elements are required by this tort. There must be (1) extreme and outrageous conduct; which (2) intentionally or recklessly (3) causes; (4) severe emotional distress. In practice however, these elements have blurred together to create one overriding requirement – extreme and outrageous conduct.77

It is difficult to predict whether courts will recognize refusal to give a get as an emotional distress tort. This is so because of the tort’s “extraordinary lack of defined standards.”78

Application of the “outrageous” standard is, “unpredictable, and doctrine virtually nonexistent.”79

Precedent on the specific issue of refusal to give a get as emotional distress is virtually nonexistent. There are only two cases known to have discussed this issue. In one unreported case, a Michigan circuit court suggested:

Moreover, refusal to give his wife a get, knowing that she will not be able to remarry without the distress of violating her deep beliefs, constitutes the intentional infliction of emotional harm. Under some circumstances the law allows damages for such an injury if the defendant's conduct was outrageous.80

In a second case, the New York Appellate Division seemed to misapply the standards of this tort. The court in Perl v. Perl rejected a claim for emotional distress where a husband had used his power to give a get to extort financial dispensation from his wife. The court argued that,

“the conduct, however productive of mental distress to the wife, occurred entirely in the context of bitter matrimonial litigation focused toward specific economic objectives, where the component of mental distress became a regrettable by-product.”81 The court apparently failed to consider the possibility that the husband’s actions recklessly caused the mental distress.82

77 See Givelber, supra note Error: Reference source not found at 43-43, 46. 78 See id. at 42. 79 See id. at 63. 80 See Redman supra note Error: Reference source not found at 417. (quoting Roth v. Roth, No. 79-192709-DO (Mich. Cir. Ct. Jan. 23, 1980)). 81 See Perl v. Perl, 126 A.D.2d 91, 96 (1987). 82 See Breitowitz, supra note Error: Reference source not found at 399 footnote 388. As to the existence of reckless infliction of emotional distress in New York, see 61 N.Y. JUR FRIGHT § 2.

18 Due to the lack of case law discussing refusal to grant a Jewish divorce as infliction of emotional distress, it will be useful to review the four requirements of the emotional distress tort, so as to get a feel for how well refusal to grant a Jewish divorce fits the description of infliction of emotional distress.

1. EXTREME AND OUTRAGEOUS CONDUCT

The presence of extreme and outrageous conduct is the single most important factor in proving an emotional distress tort.83 Unfortunately there is no clear definition of what conduct is prohibited.84 Generally, where there is a pre-existing relationship such as a contact between the parties, outrageous conduct will be easier to demonstrate.85 It would seem that marriage should qualify as such a relationship.

The restatement attempts to give a general idea of the kind of conduct necessary:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"86

Comments e and f to the Restatement provide suggestions for how outrageous conduct might be found:

e. The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests. f. The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.87

83 See Givelber, supra note Error: Reference source not found at 43-43, 46. 84 See id at 51. 85 See id at 63. 86 See RESTATEMENT (SECOND) OF TORTS § 46 cmt. d.(1965). 87 See id at cmt. e and f.

19 Comments e and f both fit the agunah case like a glove. The recalcitrant spouse enjoys a position of power over the spouse who needs a Jewish divorce in order to achieve closure of that relationship, and so that such a person would be free to remarry when the time comes. 88 The spouse is also taking advantage the “peculiarity” of the other spouse needing a get in order to get on with her life.89

In general, it would seem that the refusal to allow for a Jewish divorce is a fairly

“outrageous” course of action. Refusal to give a Jewish divorce takes advantage of the spouse’s beliefs. It keeps the spouse from moving on to the next chapter of his or her life. Refusal to give the Jewish divorce also deprives the spouse of his or her ability to remarry. Several cases support the idea that refusal to give allow a Jewish divorce is an outrageous act. Perl v. Perl refused to enforce a financial agreement that was signed under the shadow of threats by a husband that he would not otherwise issue a get. The court held this agreement to be one created under duress.90

In Burns v. Burns the plaintiff refused to give a get unless his wife would invest $25,000 in an irrevocable trust for the benefit of their daughter. The court described this as “akin to extortion.”91 Given these decisions, a court is likely to find that refusal to give a get is outrageous conduct. The “extortion” which the recalcitrant spouse is engaging in will likely be looked upon as an aggravating circumstance, as it would likely create mental duress.

Nonetheless, it is not clear that driving even an unconscionable bargain is conduct that goes

“beyond all possible bounds of decency.”92 Nonetheless, driving a particularly hard bargain,

88 See Redman supra note Error: Reference source not found at 420-421. 89 See Glick Shanah D. Glick, The Agunah in the American Legal System: Problems and Solutions, 31 U. LOUISVILLE J. FAM. L. 885, 909 (1992). Note that the illustrations to comment f of the Restatements refer to a person taking advantage of another person’s superstitions. If superstitions are protected, it stands to reason that a person’s need for a get should be protected as well. 90 See Perl v. Perl, 126 A.D.2d 91 (1987). 91 See Burns v. Burns, 538 A.2d 438, 223 N.J. Super. 219 (Ch. Div. 1987) 92 See Breitowitz, supra note Error: Reference source not found at 399.

20 seems quite reprehensible. Where such a bargain is offered, the spouse suffers the duress of needing to choose between accepting their spouse’s terms or remaining an agunah (or an igun).

The duress is particularly acute where the demand involves child custody.93

Comment h of the Restatement provides:

h. Court and jury. It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.94

At the very least, the presence of extreme conduct should be a question for the jury.

Since the agunah presents a fairly sympathetic case, it is apparent that in many of these cases extreme and outrageous conduct95 will be found.

In defense of a decision not to give a get, a recalcitrant spouse might argue that s/he has a religious reason for not going through with the divorce. This issue will be taken up at greater length in the discussion of both the Establishment Clause and the Free Exercise Clause.96 Unlike the constitutional arguments, the argument here bears on the merits of the tort. If a person could claim that they had a religious reason not to give a divorce that would certainly mitigate the outrageousness of the refusal. The fact of the matter is that most people who refuse a Jewish divorce do so either for strategic reasons (i.e. to coerce the other party) or for vindictive reasons.

Moreover, as discussed at great length above, giving and accepting a get is a discretionary matter in Jewish law.97 I know of no reason under Jewish law that would encourage a get not to be

93 See e.g. Greenberg-Kobrin supra note Error: Reference source not found at 359. 94 See RESTATEMENT (SECOND) OF TORTS § 46 (1965). 95 Breitowitz supra note Error: Reference source not found at 399 notes that an argument might be mad that refusal to give or accept a get might be viewed as an omission rather than a commission. Nonetheless, Breitowitz concludes, “there is authority that even a failure to act may give rise to tortious liability, at least when there was a pre-existing intimate or confidential relationship that generated special understandings and expectations.” 96 See infra p. 31and 39 respectively. 97 See supra text accompanying note Error: Reference source not found et. seq.

21 given if a civil divorce is already a fait acompli. My informal survey of several Rabbis who are also rabbinic educators did not unearth any such argument.

As a final note on outrageous conduct, I would like to mention that one does not need to look only at the refusal to give or receive a get as infliction of emotional distress. The spouse’s other actions, such as the driving of an unconscionable bargain98 or other statements the spouse makes concerning the get issue may also be the source for a finding of outrageous conduct.

2. INTENT OR RECKLESSNESS

The Restatement standard of infliction of emotional distress requires either an intentional or reckless state of mind.99 Givelber points out that state of mind often does not need to be proven in an emotional distress case. Instead, the outrageousness of conduct often serves as a proxy for intent:

when the defendant behaves outrageously, the plaintiff will not usually be required to show either intention to cause distress or even a deliberate disregard of a high degree of probability that it will result. Courts have interpreted the intent or recklessness element of the tort as referring to whether defendant intended to act towards plaintiff in a manner that can be considered outrageous; if so, then defendant may be held liable "if he knew or should have known that emotional distress was the likely result of his conduct." This view distinguishes between intention regarding the conduct and its likely victim, and intention regarding the consequences of the conduct. . . . a reasonableness standard will be applied with respect to the issue of whether the defendant should have known that the conduct would cause emotional distress to the plaintiff.100 (Citations omitted).

Assuming arguendo that intent or recklessness must be directly required, the intent of the recalcitrant spouse is often clear. The recalcitrant spouse often acts out of malice, which clearly demonstrates intent. Where the spouse attempts to use the get as a bargaining chip, intent is less clear.101 A demonstration of this can be found in Perl, where emotional distress was found to be

98 See supra text accompanying notes Error: Reference source not found-Error: Reference source not found. 99 See RESTATEMENT (SECOND) OF TORTS § 46 (1965). 100 See Givelber, supra note Error: Reference source not found at 46. 101 Breitowitz supra note Error: Reference source not found at 399.

22 a “regrettable byproduct” of an economic pursuit.102 As mentioned above, the Perl decision is questionable in that it failed to consider the possibility of reckless infliction of emotional distress.103 The Restatement defines reckless as having a “deliberate disregard of a high degree of probability that the emotional distress will follow.”104 The vast majority of agunah cases, including the Perl case in my opinion, should be found to involve at least a reckless state of mind. It is also worth noting that the Perl decision is distinguishable because the emotional distress suit was based on the coercive actions taken by the husband, and was not directly based on the refusal to give a get.105

In general, direct proof of intentional or reckless causation will not be required for the emotional distress tort. If that state of mind is required by the court, it should not be terribly difficult to find.

3. CAUSATION

The third requirement for an emotional distress tort is that the tortious conduct must have been the cause of emotional distress. In practice, the requirement to show causation is rarely a problem. Where both outrageous conduct and severe mental suffering are evident, the issue of causation is often submitted to the jury with just the plaintiff’s assertion that the defendant’s actions were the cause of the suffering. “In contrast, cases involving physical injuries typically require an expert to prove both the cause and extent of the injuries.”106

102 See Perl v. Perl, 126 A.D.2d 91, 96 (1987). 103 See Breitowitz, supra note Error: Reference source not found at 399 footnote 388. 104 See RESTATEMENT (SECOND) OF TORTS § 46 cmt. i.(1965). 105 See Glick, supra note Error: Reference source not found at 913. Although I think this is a valid distinction, I still stress the erroneous nature of the Perl decision. There are potential constitutional advantages to basing an emotional distress claim on a spouse’s unconscionable offer. See infra text accompanying note Error: Reference source not found. 106 See Givelber, supra note Error: Reference source not found at 49.

23 Even given a strict requirement to demonstrate cause, the causation element of the emotional distress tort should not be a problem in the agunah case. It was the spouse’s refusal to give (or receive) a get that has bound the other spouse to an already failed marriage. The husband and wife are the only actors involved in the creation and maintenance of this unfortunate situation.107 Pursuant to Restatement comment f, which recognizes that the peculiar beliefs of the victim may give rise to a finding of “outrageous” conduct, it is clear that the recalcitrant spouse should be viewed as the cause of this problem.108

4. DISTRESS

Establishing an emotional distress claim requires proof that actual emotional distress occurred. Where it has been demonstrated that the defendant acted outrageously, the mental distress will often be assumed. The restatement on infliction of emotional distress indicates,

“Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant's conduct is in itself important evidence that the distress has existed.”109 This point should not be overstated, as sometimes inadequate description of suffering has precluded recovery.110 The enumeration of emotional distress here is simple. Refusal to allow a Jewish divorce to take effect makes a person unable to remarry, start a family ant to attain a feeling of control over one’s own destiny.111

107 See Glick, supra note Error: Reference source not found at 909. 108 See RESTATEMENT (SECOND) OF TORTS § 46 cmt. f.(1965). For the text of this rule see supra text accompanying footnote Error: Reference source not found. 109 See RESTATEMENT (SECOND) OF TORTS § 46 cmt. j. 110 See Givelber, supra note Error: Reference source not found at 48 footnote 29. 111 See Glick, supra note Error: Reference source not found at 908. Glick makes note that the Supreme Court has recognized the right to remarry as a fundamental liberty interest (citing Zablocki v. Redhail, 434 U.S. 374, 384, (1978).

24 5. SUMMARY OF THE EMOTIONAL DISTRESS CLAIM

The tort of infliction of emotional distress requires four elements. Of those elements, proof of outrageous conduct goes a long way towards proving the three other elements. The refusal to grant a Jewish divorce is at least a highly reprehensible act. Many cases of refusal to give a Jewish divorce will be seen as outrageous. These decisions leave a spouse bound to someone they don’t love. They render a person unable to find closure for their failed marriage, and unable to remarry. Because of the reprehensible nature of the refusal to grant a Jewish divorce, the other requirements of the emotional distress tort will fall in line easily. Thus, it can be said that the tort of emotional distress should be available as a cause of action for the spouse who has been denied a Jewish divorce.112

The claim of infliction of emotional distress is not without its limitations. First, although recognition of this tort is increasing, it is not yet universal.113 Second, there is a certain resistance to find liability in individual emotional distress cases because of fears of frivolous litigation.114

The unique nature of this claim may mitigate against this reluctance. Third, some states still recognize interspousal immunity. This tort would be unavailable in such states.115 These shortcomings will limit the applicability of the tort, but there is still ample room for the successful use of the emotional distress claim.

6. REMEDIES

If the tort claim discussed above is accepted, investigation must be done into what remedies may be sought. The reader is reminded of the lengthy discussion regarding compulsion

112 This is to say that refusal to give a Jewish divorce fits the elements of the emotional distress cause of action. Whether or not the emotional distress claim should be available will depend on the constitutionality of this approach. 113 See Redman supra note Error: Reference source not found at 422. 114 See Glick, supra note Error: Reference source not found at 910. 115 See Redman supra note Error: Reference source not found at 422.

25 and gitin.116 The result of that discussion was that any remedy sought for the agunah problem must not rise to the level of causing a get to be issued under duress. This section will discuss what remedies might be available that fit this description. Since the definition of “duress” is somewhat vague117, caution is necessary. Additionally, anyone seeking remedies under a tort or any other theory should consult with competent Rabbis who might advise them as to the remedies that should be sought after. Several solutions are drawn discussed below.

I. DAMAGES

Irving Breitowitz explores the use of money damages for infliction of emotional distress.

The possibility of money damages is first and foremost meant as a deterrent effect. That is to say that the recalcitrant party may be encouraged to accept a Jewish divorce for fear of monetary sanctions.118 Another benefit to monetary damages is that it gives the victim-spouse a bargaining chip. The judgment could be released or reduced in exchange for a Jewish divorce.119 Finally, the successful litigant may also be able to threaten the recalcitrant spouse with successive law suits on a theory that each refusal to give a get constitutes a separate act.120

Breitowitz properly questions the halachic viability of the money damages option.

Money damages are considered by many to be coercive. Accepting the moderate approach I adopted above,121 there should be some level of money damages that would not be considered coercive. For instance, a $1,000 fine would not be coercive to a millionaire. A balance may be struck where damages are sought, and the plaintiff errs on the side of caution as to the highest amount of damages that might be set without being “coercive.” The fact that this is necessary

116 See supra p. 9 et. seq. 117 See supra note 36 and accompanying text. 118 See Breitowitz, supra note Error: Reference source not found at 401-402. 119 See id. at 402 120 See id. In footnote 398 Breitowitz admits that this proposition is questionable. 121 See supra note 36 and accompanying text.

26 will severely limit the efficacy of this solution. The money damages option can only be used insofar as it wouldn’t be strong enough to have a strong effect.

II. EQUITABLE RELIEF

David Cobin proposes that the remedy for this tort should be equitable relief. Cobin argues that equitable relief would be appropriate because a money award would not remove the agunah problem that lead to the victim’s emotional distress.122 Second, Cobin argues that equitable relief is appropriate because money damages would quite possibly invalidate the get.123

There are two forms of equitable relief suggested. First, a suggestion is made for an order to give a get. Cobin rejects this solution because he believes that such a get would constitute a coerced get.124 The second suggestion is for an order to submit to bet din and to follow the instructions of the bet din.125 This would allow the bet din maximum control over the situation.

The bet din could make a determination of what sanctions are appropriate under Jewish Law.

Note that rather than submitting to bet din or giving a get, the recalcitrant spouse should also be able to appoint an agent for the delivery of a get.126

Preliminarily, I note that the character of the equitable relief is quite different than money damages as far as Constitutional Law is concerned. Money damages merely recognize that the effects failure to perform a certain religious rite are compensible. Equitable relief means the court is actually telling the party to perform a religious rite against his or her will.127

122 See David M. Cobin, Jewish Divorce and the Recalcitrant Husband – Refusal to give a Get as Intentional Infliction of Emotional Distress, 4 J.L. & RELIG. 405 (1986). 123 See id. 124 See id at 423. It would seem that the coercive nature of this order might depend on what sanctions are set for failure to comply with the order to give a get. 125 See id. 126 See supra text accompanying notes Error: Reference source not found-Error: Reference source not found. 127 The constitutional issues of these forms of relief will be taken up below. See infra p. 39.

27 III. A NEW SUGGESTION – “UNCLEAN HANDS.”

To my knowledge, previous discussions of forms of relief pursuant to a finding of infliction of emotional distress has been limited to discussions of equitable relief and money damages. I would like to make a new suggestion. I argue that a recalcitrant spouse’s refusal to give or accept a get might render that spouse’s hands unclean, so that spouse may be precluded from subsequent equitable relief in matters concerning the divorce of the parties.

The doctrine of unclean hands provides that, “He who comes into equity must come with clean hands.”128 The doctrine may only be invoked in order to prevent affirmative equitable relief.129

In the exercise of that discretion, courts have recognized that one’s misconduct need not necessarily have been of such a nature as to be punishable as a crime or to justify legal proceedings of any character to warrant application of the maxim; any willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct is sufficient cause for invocation of the maxim. Within the purview of the maxim, the hands of the litigant are rendered unclean by conduct which is “condemned and pronounced wrongful by honest and fair-minded men,” inequitable, unfair, dishonest, fraudulent, unconscionable, or in bad faith.130

Although the doctrine of unclean hands originated in equity, there are some authorities who hold that the rule is equally applicable at law.131 Also, the doctrine may be used to preclude a defendant of unclean hands from seeking affirmative relief.

The doctrine of unclean hands has in some jurisdictions been recognized as a defense to a divorce or dissolution marriage action.132 In some jurisdictions the doctrine of unclean hands

128 See 30 C.J.S. Equity § 102 (1992). For an overview of the unclean hands rule, see 30 C.J.S. Equity §§ 102-114. (1992) 129 See id. 130 See 27 AM. JUR 2d Equity 128 (1996). 131 See 30 C.J.S. Equity § 111 (1992). 132 24 AM. JUR. DIV. & S. §131.

28 operates so as to bar a custodial parent from seeking relief for failure to pay child support where the custodial parent has denied the obligor’s visitation rights.133

In civil divorce proceedings, it may be possible to bar the recalcitrant spouse from any affirmative equitable relief by claiming that the spouse’s infliction of emotional distress constitutes unclean hands. Infliction of emotion stress would fit into the category of transgressions of “equitable standards of conduct.”134 However, the doctrine of unclean hands only involves actions that are “so connected with the subject matter as to affect the opposite party or the equitable relations between the parties.”135 Again, the infliction of emotional distress issue fits this description. This is the break-up of their marriage. Their marriage included obligations as well as options about how to treat one another under Jewish law. The Jewish aspect of their marriage would seem to be intimately connected with the relations between the parties. The doctrine of unclean hands may also be useful in order to bar the recalcitrant spouse from bringing any action to compel compliance with child support and visitation rights.

If this use of the unclean hands doctrine were successfully in force, it would have at least the same force as the first New York Get Law.136 It would surpass the effectiveness of the New

York law in several ways. First, statutory enactment would not be unnecessary. Second, at least to some limited degree the doctrine will affect the spouse who did not file for divorce as well.

Third, there is a potential remedy for refusal to give a get after the divorce. We noted above that this Get Law was easiest to reconcile with halacha as it represents a denial of the benefits of divorce law, rather than a “punishment” for failure to give a get. 137 I believe this would also be

133 24 AM. JUR. DIV. & S. §1065 and 1077. 134 See 27 AM. JUR 2d Equity 128 (1996). 135 See 30 C.J.S. Equity § 111 (1992). 136 See supra p. 14 et. seq. 137 See supra note Error: Reference source not found-Error: Reference source not found, Error: Reference source not found.

29 the case where a refusal to grant a Jewish divorce lead the court to deny enforcement of a support order.

IV. SUMMARY OF REMEDY OPTIONS

Three options have been advanced as remedies138 when liability for infliction of emotional distress is found. The money damages option is the simplest solution, but it can apply very little pressure on the recalcitrant spouse. Equitable orders seem to drive right to the heart of the matter. Those orders, however, seem to be subject to greater constitutional concern. Finally,

I have proposed an implementation of the doctrine of unclean hands as a method of denying the recalcitrant spouse useful access to the court system. This can provide some real incentive to clean the “unclean hands,” so as to gain the legal benefits previously denied. The three remedy options are all at best an incomplete arsenal.

E. CONSTITUTIONALITY OF A TORT REMEDY FOR AGUNOT.139

The most effective way to investigate the constitutionality of the application of tort law to the agunah situation is through an investigation of the successes and failures of the contractual remedy. This is the proper investigation because it is on that issue that there is a body of constitutional law. There are a good number of cases, which cover several different types of agreements. By reviewing these decisions, we can hopefully gain a grasp for the contours of the get issue in constitutional law.

138 The term “remedy” probably isn’t an appropriate choice in reference to the doctrine of unclean hands, as the doctrine is expressly a doctrine of non-action. 139 The arguments herein will only be based on the United States Constitution. It is important to note that some states have found that solutions to the agunah problem are barred based on their state constitution. See e.g. Steinberg v Steinberg (June 24, 1982, Ohio App 8th Dist) Docket No. 44125 (cited in ALR “Enforceibility” xxx).

30 1. THRESHOLD QUESTION: IS JEWISH DIVORCE LAW AND PROCEDURE RELIGIOUS?

An investigation into the constitutionality of laws that encourage the giving of a Jewish divorce cannot begin with the analysis of the Free Exercise and Establishment clauses of the

Constitution. Before applying the tests from Free Exercise and Establishment, we must first determine if a Jewish divorce should be considered a religious act.

If a Jewish marriage contract has no religious content, and the termination of the marriage -- the writing and delivery of a get -- is merely a private, civil action with no religious significance or content, then laws or court decisions requiring that husbands give their wives a get, do not come into conflict with the First Amendment.140

Surprisingly, whether or not a get is considered a religious act is subject to quite a bit of debate in both case law and scholarly literature. This question was examined in detail by the court in

Minkin v. Minkin.141 In Minkin, the court heard testimony from quite a few learned Rabbis, and concluded by their near unanimous testimony that a get is not a religious act.142 The court discussed several reasons for the conclusion that the get is not a religious act:

1. The giving of a get does not require a religious ceremony or even a Rabbi. 2. In order to affect a get, the participants do not need to believe in Judaism, or state any doctrine or creed, or even acknowledge their Jewish faith. 3. The text of the get does not make any reference to G-d’s name.143 4. Jewish religion understands itself as consisting of two components. One part of Judaism is laws that are considered to discuss the relationship “between person and G-d,” while other laws are said to involve the relationship between “person and person.”144

140 See Paul Finkelman, A Bad Marriage: Jewish Divorce and the First Amendment, 2 CARDOZO WOMEN'S L.J. 131, 161 (1995). 141 434 A.2d 665, 180 N.J. Super. 260 (Ch. Div. 1981). 142 The lone dissenter in this opinion was a Reform Rabbi who admitted that the other Rabbis who had testified were “far better Jewish scholar(s) than myself.” See Minkin supra note Error: Reference source not found 434 A.2d at 668, 180 N.J. Super. at 266. 143 See supra note Error: Reference source not found for the text of a get. Although the get does make reference to the “laws of Moses and Israel,” this clause can be best understood as statement of choice of law. 144 See Minkin supra note Error: Reference source not found, 434 A.2d at 667-668, 180 N.J. Super. at 265-266.

31 Based on the above analysis, the court in Minkin court found that, “the get procedure is a release document devoid of religious connotation and cannot be construed as any more religious than the marriage ceremony itself.”145 Minkin concluded that there was no constitutional bar to ordering a get.146 Minkin’s analysis has been followed both by another New Jersey Chancery

Division case147, as well as an Illinois appellate court decision.148 These courts are certainly correct in finding that the get process has no religious content. However, this only tells half the story.

For example, marriage is a secular activity but is also endowed with theological significance since to marry is a commandment given by God. Thus, although marriage is a relation between humans, it is also a relation between humans and God. Similarly, divorce, while indeed affecting relations between humans, is a religious commandment when the marital circumstances warrant. (Citations omitted).149

In 1996, another New Jersey Chancery Court weighed in on this matter.150 The court expressly refused to follow Minkin’s lead.151 The Aflalo court was most critical of Minkin’s investigation of whether a get was a religious act.152 Aflalo found such an investigation to be a violation of the entanglement wing of Establishment Clause analysis.153 This charge against

Minkin is unfounded. This part of the Minkin decision was dedicated to determining whether or not there was religious law present. Consultation to Jewish ideas was both necessary and proper.

145 See id , 434 A.2d at 668, 180 N.J. Super. at 266. 146 See id. 147 Burns v. Burns, 538 A.2d 438, 223 N.J. Super. 219 (Ch. Div. 1987). 148 See Goldman v. Goldman, 554 N.E.2d 1016 (Ill. App. 1990). 149 See Redman supra note Error: Reference source not found at 402. This argument is made forcefully by Aflalo v. Aflalo, 685 A.2d 523, 295 N.J. Super. 527 (Ch. Div. 1996). See infra text accompanying note Error: Reference source not found. 150 See Aflalo v. Aflalo, 685 A.2d 523, 295 N.J. Super. 527 (Ch. Div. 1996) 151 See id 685 A.2d at 528, 295 N.J. Super. at 537. 152 See id 685 A.2d at 528-529, 295 N.J. Super. at 538. (Citing Serbian Eastern Orthodox Diocese v. Milivajevich, 426 U.S. 969 (1976)). 153 See id.

32 It is well established that in applying the First Amendment courts must question whether there is religious law present.154

Aflalo also argued that even if an area of religious practice relates to interpersonal behavior, it still may be considered “religious:”

The concept of "religion" certainly does have reference to one's relation to the creator but it also has relation to one's obedience to the will of the creator. In one's pursuit to comply with the creator's will one is certainly engaged in religious activity. While engaging in such conduct, one may also be subjected to civil authority but that does not remove that conduct from the scope of religious activity. Minkin draws too fine a line in its rejection of the latter as an area constituting "religion[.]"155

Shanah Glick offers an astute analysis of the debate over whether a get is a religious or secular matter. The question here is whether a seemingly civil law promulgated through religious auspices should be considered religious or secular. The rabbinic testimony in Minkin,

Glick argues, juxtaposed the Jewish framework of commandments “between G-d and person” and “between person and person,” on this determination of American law. “Ultimately, the question is whether the religion’s definition of secular or secular society’s definition of secular will prevail.”156 It has been suggested that the definition of religion in the First Amendment should be viewed as a continuum. While all Jewish law has fairly equal religious significance, the laws are of differing secular significance. The argument goes, that the more secular activities should be secularly justiciable.157 I fail to see how the secular significance of a given law should

154 See Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972). (Claim of Free Exercise right must demonstrate a sincerely held religious belief). 155 See Aflalo v. Aflalo, 685 A.2d 523, 529, 295 N.J. Super. 527, 539 (Ch. Div. 1996). See also text accompanying note Error: Reference source not found. 156 See Glick, supra note Error: Reference source not found at 900. Glick argues that since the parties signed a ketubah binding themselves to follow the “laws of Moses and Israel,” this could be viewed as a choice of law, so that the American courts should apply the Jewish definition of “religion” to the first amendment. See id at 901. I think this argument is unfounded. Although I agree that in some contexts the text “according to the laws of Moses and Israel” may be seen as a choice of law, I cannot fathom that this would demand a specific mode of constitutional interpretation. The laws that they have chosen to abide by are in the area of domestic relations, rather than in the area of constitutional protections. 157 See Redman supra note Error: Reference source not found at 402.

33 make judicial intervention into a matter invested with religious significance any less constitutionally repugnant.

I am thus reasonably convinced that Jewish divorce law contains a great deal of religious significance. This conclusion means that Jewish divorce law will be provided with First

Amendment protections. If the conclusion were the opposite, the words of New York sportscaster Warner Wolf would apply – “you can turn your sets off there.” In other words, were the Jewish get law an entirely secular matter, there would be no constitutional bar to judicial intervention.158 Once it has been determined that that Jewish get law should be seen as religious, we must now apply Establishment Clause and Free Exercise Clause analysis to determine whether or not judicial intervention is acceptable.

2. ESTABLISHMENT CLAUSE CONCERNS

The First Amendment to the United States Constitution provides that, “Congress shall make no law respecting an establishment of religion....” In practice, an establishment of religion may be indicated by the fact that a law (1) lacks a secular purpose; (2) has as its primary effect either the advancement or inhabitation religion; or (3) creates excessive government entanglement with religion.159 In cases dealing with enforcement of an agreement to give a get, the courts have focused on excessive entanglement.160 This is probably because these two analyses are relatively simple in this case. Secular purposes to enforcement of an agreement to give a get include enforcement of contracts, promotion of amicable settlement of marriage disputes, and mitigation of potential harm to spouses and children caused by the process of

158 See Finkelman supra note Error: Reference source not found at 161. 159 See Lemon v. Kurtzman 403 U.S. (1971). 160 See Redman supra note Error: Reference source not found at 401. Redman notes that there was no consideration of primary effect analysis in the landmark case of Avitzur v. Avitzur, 58 N.Y.2d 108, 114 N.E.2d 136 (1983).

34 divorce.161 These concerns also have been understood as the primary effect of enforcement of agreements to give a get.162 Recognition of an emotional distress claim for refusal to grant a

Jewish divorce should be analyzed in much the same way. The secular interest in enforcement of contracts will be replaced by the equally valid secular interest of protecting a citizen from an

“unjustifiable emotional invasion.”163

Entanglement concerns have been the main focus of Establishment Clause concerns in the enforcement of agreements to obtain a Jewish divorce.164 In this regard, Irving Breitowitz notes that the entanglement prong of the Lemon test, “been sharply criticized as ‘superfluous.’

Nevertheless, the ‘entanglement’ criterion remains very much alive.”165 (citations omitted). The courts in get cases have grappled with these issues many times. The courts respond with a claim that they are using a “neutral principle of law” approach which has been found to be consistent with constitutional limitations.166 A tort claim of emotional distress provides a neutral principle of law upon which the court can deliberate, just as the resort to contract law does.

Even given the comfortable confines of the “neutral principles,” of contract law, there can be an establishment problem when ambiguities in the agreement that is alleged to require giving a get requires interpretation of Jewish law. This investigation is usually to determine whether or not Jewish law would require giving a get.167 In the case of contract interpretation, the investigation would be required to determine if there is a contractual obligation to allow a

Jewish divorce.

161 See Goldman v. Goldman, 554 N.E.2d 1023 (Ill. App. 1990). See also Redman supra note Error: Reference source not found at 401. 162 See Goldman at 1023. 163 See Breitowitz supra note Error: Reference source not found at 404-405. 164 See Redman supra note Error: Reference source not found at 401. 165 See Breitowitz supra note Error: Reference source not found at 356. 166 Avitzur v. Avitzur, 58 N.Y.2d 108, 114 N.E.2d 136 cert denied 104 S.Ct. 76 (1983) (citing Jones v. Wolf, 443 U.S. 595, 602 (1979)). 167 See e.g. Aflalo v. Aflalo, 685 A.2d 523, 295 N.J. Super. 527 (Ch. Div. 1996); Minkin v. Minkin, 434 A.2d 665, 180 N.J. Super. 260 (Ch. Div. 1981); Burns v. Burns, 538 A.2d 438, 223 N.J. Super. 219 (Ch. Div. 1987); Goldman v. Goldman, 554 N.E.2d 1016 (Ill. App. 1990).

35 Burns v. Burns is illustrative of the problem. In Burns, the court was asked to issue an order requiring a recalcitrant husband to assist in securing a get for his wife.168 The alleged contractual obligation was based on the standard Jewish ketubah’s provision that the parties are married “according to the laws of Moses and Israel.”169 The court took judicial notice of the

Bible and of Encyclopedia Judaica, adding that it found the same to be “learned treatises containing the laws of Moses and Israel.”170 Based on its investigation into Jewish law, the court decided that Mrs. Burns was contractually entitled to a get.171 The court found that it was within its power to order Mr. Burns to submit to a bet din and to initiate the get procedure, but the court left in the hands of the bet din the ultimate decision of whether a get would be granted.172 It should be noted that a Michigan appeals court case came to the same conclusion as Burns.173

In 1994, the Arizona Supreme Court found itself in the same position as the Burns court.174 The court found that the obligation to comply with the “laws of Moses and Israel” was too vague to be enforced.175 The court added:

If this court were to rule on whether the ketubah, given its indefinite language, includes an unwritten mandate that a husband under these circumstances is required to grant his wife a get, we would be overstepping our authority and assuming the role of a religious court.176

The Arizona court recognized that making an investigation into the requirements of Jewish law would overstep the bounds of the court. Unlike Burns, the court would not even entertain the possibility that the issue of the husband’s obligation to grant a get could be submitted to bet din.

There was no language in the ketubah from which an obligation to submit to bet din could be

168 See Burns v. Burns, 538 A.2d 438, 223 N.J. Super. 219 (Ch. Div. 1987). 169 See id 538 A.2d at 440, 223 N.J. Super at 224. 170 See id. 171 See id 538 A.2d at 441, 223 N.J. Super at 226. 172 Compare Minkin v. Minkin, 434 A.2d 665, 668180 N.J. Super. 260,266 (Ch. Div. 1981). 173 See Goldman v. Goldman, 554 N.E.2d 1016 (Ill. App. 1990). 174 See Victor v. Victor 866 P.2d 899 (Ariz. 1993). 175 See id at 902. 176 See id.

36 found without an investigation into Jewish law.177

The Arizona Supreme Court recognized that to interpret the ketubah as a contract requiring giving a get would necessarily require the court to, “engage in sustained investigation as to what the ‘laws of Moses and Israel’ are and what they require.”178 The court properly refused to do so. If a similar investigation was necessary in order to establish a tort for emotional distress, the tort would fail on establishment grounds. Fortunately, no such investigation is necessary. Investigation into the “laws of Moses and Israel” was necessary in the ketubah cases because the contractual obligation was to be the basis of an obligation to give a get

(or to submit to bet din). In the infliction of emotional distress case, the obligation to give a get derives from a common law obligation to restrain from causing another person emotional harm.

The court is in no way required to investigate the spouse’s religious obligation to give a Jewish divorce. The concern for this argument is also lessened by the fact that often circumstances surrounding the refusal of a get, such as monetary extortion, will be the true source of the emotional distress argument.179

Above,180 it was argued that a corur order to submit to bet din is the optimal form of relief for the agunah. This is because such an order would allow the bet din to decide what forms of pressure or punishment were appropriate. The bet din’s decisions would likely be civilly enforceable. An Establishment Clause concern may arise from a court ordering a person to submit to bet din. The order to give a get, which takes no more than a couple of hours most likely

177 See id. 178 See Breitowitz supra note Error: Reference source not found at 357. Breitowitz provides a laundry list of Jewish law questions that the court would have to ask: “What is the halachic meaning of the vague incantation-"in accordance with the laws of Moses and Israel"? Is it intended to have any legally binding significance? What are the grounds under which a husband is obligated to divorce his wife? What methods of compulsion are authorized? And from the standpoint of Jewish law, what actions may a court take in inducing a recalcitrant spouse to act in accordance with his or her obligation without producing a get meusah?” Note meusah means coerced. 179 See supra note Error: Reference source not found and accompanying text. 180 See p. 27 et. seq.

37 does not constitute “excessive entanglement.181 There is a plethora of cases that demonstrate that such an order will be freely given by the courts.182

3. FREE EXERCISE CONCERNS

Any order either assessing damages for a failure to give a get, or compelling a person to give a get would be subject to a free exercise concern.183 There are two main arguments that may override the free exercise claim. The first argument is that there may be a compelling state interest that overrides the Free Exercise Clause. This argument will most likely fail. The second argument is that the refusal to give a get will not constitute the exercise of a sincerely held belief.

Although this argument requires a case-by-case analysis,184 in most cases this argument will preclude a free exercise claim.

I. COMPELLING STATE INTEREST

A free exercise claim may be defeated by a state interest of “the highest order.”185 In the case of agunah, it has been argued that there are several state interests that would defeat a free exercise claim.186 First, “maintaining barriers to remarriage following a judgment of divorce . . . frustrates the policy behind divorce statutes and the integrity of the judicial system.”187 Second, marriage is a fundamental interest in its own right.188 “Although the deprivation in question arises from private rather than public or governmental action, states should as a matter of

181 See Breitowitz supra note Error: Reference source not found at 356. 182 See e.g. Scholl v. Scholl, 621 A.2d 808 (Del. Fam. Ct. 1992); Goldman v. Goldman, 554 N.E.2d 1016 (Ill. App. 1990); Burns v. Burns, 538 A.2d 438, 223 N.J. Super. 219 (Ch. Div. 1987) Minkin v. Minkin, 434 A.2d 665, 180 N.J. Super. 260 (Ch. Div. 1981); Waxstein v. Waxstein, 90 Misc.2d 784, 395 N.Y.S.2d 877 (1976); Margulies v. Margulies, 344 N.Y.S.2d 482 (N.Y. App. Div.), appeal dismissed, 307 N.E.2d 562 (N.Y. 1973). 183 See U.S. Const. AMEND. I. 184 See Breitowitz supra note Error: Reference source not found at 358-359. 185 See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). 186 See Breitowitz supra note Error: Reference source not found at 396 and footnote 368. 187 Id. at 385. 188 See Glick, supra note Error: Reference source not found at 908 (citing Zablocki v. Redhail, 434 U.S. 374, 378 (1978)).

38 principle have the authority, if not the obligation, affirmatively to protect those rights even from private infringement.”189 Finally, since a get is often withheld for purposes spite or extortion, the government has an interest in avoiding these situations as well.190

I am not convinced that any of these arguments would successfully defeat a free exercise claim. The Supreme Court has stated that actions of free exercise that have been regulated by compelling state interests, “invariably posed some substantial threat to public safety, peace or order.”191 As laudable as the interests enumerated above are, I don’t think they are enough to defeat a free exercise claim.

II. SINCERELY HELD BELIEFS

The right to free exercise of religion does not mean that anyone can simply claim a religious objection to a given law. “Although a determination of what is a 'religious' belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”192 In the agunah case, there are several factors that indicate that only in the rarest cases of agunah is there a “sincerely held religious belief” which would preclude a person from giving a get. First, refusal to give a get is usually based on vindictive or coercive intent. When blackmail or vindictiveness is evident, the court will be likely unsympathetic to a claim of “sincerely held beliefs.”193 Second, on grounds of Jewish law and thought, I can think of no valid reason not to give a get once a civil divorce is

189 Breitowitz supra note Error: Reference source not found at 385. 190 See Breitowitz supra note Error: Reference source not found at 386. 191 Serbert v. Verner, 374 U.S. 398. 192 Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972). 193 See Burns v. Burns, 538 A.2d 438, 223 N.J. Super. 219 (Ch. Div. 1987). In Burns the husband’s offer of a get in exchange for a $25,000 deposit into an irrevocable trust for the former spouses’ daughter indicated that the refusal to give a get was not founded on religious beliefs. “A true belief is not compromised as the amount of money offered or demanded is increased.” 538 A.2d at 440, 233 N.J. Super. at 224. See also Goldman v. Goldman, 554 N.E.2d 1016, 1023-1024 (Ill. App. 1990).

39 imminent or has been completed.194 Finally, since the get process is quite clearly a part of the area of Jewish civil law,195 it will be difficult to convince the court of a sincere religious objection to participation. This argument may seem inconsistent with the discussion of the

Establishment Clause above196, wherein it was decided that giving a get constitutes a religious act. There is, however, a distinction between that Establishment Clause discussion and this Free

Exercise Clause discussion. Irving Breitowitz argues convincingly that, “the nontheistic nature of the ceremony, while perhaps immaterial with respect to Establishment Clause concerns which focus on state endorsement and entanglement, may be highly relevant on the issue of free exercise, which above all is designed to protect infringements on religious conscience.”197

As a matter of simple fact, the vast majority of agunah cases will not involve sincerely held beliefs. Therefore, liability based on a tort theory (or any other theory for that matter) will rarely be precluded by the Free Exercise clause.

F. CONCLUSION

This paper has argued for the recognition of an emotional distress tort for those Jewish people who have been denied a divorce by their spouses. This tort would add another form of protection for the Jewish spouse from a recalcitrant ex-spouse. There are several key advantages to this tort. A tort remedy could be recognized without legislative action. It also would not require the existence of a contract between the two parties. There are, however, several factors that will limit the use of this tort to help agunot. Some states do not recognize a tort for emotional distress. Still others do not allow tort suits to be sustained by one ex-spouse against another. Despite these and some other shortcomings, the tort of emotional distress should be a

194 See supra p. 22. 195 See supra p. 31. 196 See id. 197 See Breitowitz supra note Error: Reference source not found at 358 footnote 203.

40 useful tool to some who are in the unfortunate position of being agunot.