Precedent-setting Ruling by New York State’s High Court Does Not Settle Issue of ‘get’

A precedent-setting ruling by New York State’s highest court, that a prenuptial agreement between a civilly-divorced Jewish couple to submit differences over their religious obligations to a rabbinical tribunal is enforceable in civil courts, may have to go back to a lower state court to be implemented, a Jewish legal rights agency official said today.

Howard Zuckerman, president of the National Jewish Commission on Law and Public Affairs (COLPA), which filed a friend of the court brief in the case, said the wife, as plaintiff, will probably have to apply to a lower state court for an order compelling her husband to grant her a Jewish divorce, a “get”.

The Court of Appeals, the state’s highest court ruled 4-3 in Albany last Tuesday that the prenuptial agreement in the Jewish wedding certificate, the Ketubah, of Susan Avitzur and her former husband, Boaz, is enforceable in civil court.

Mrs. Avitzur filed the suit initially in the Supreme Court of Albany County following the couple’s civil divorce in May, 1978. Zuckerman told the Jewish Telegraphic Agency that the 4-3 Court of Appeals ruling was the first on that issue by the highest court of any of the 50 states.

Dennis Rapps, COLPA executive director, said that if Boaz Avitzur accepts the high court’s order to appear before a Beth Din (Rabbinical Court) with his civilly-divorced wife, which Rapps said was unlikely, the order of implementation would be met. However, he added, a number of issues stemming from the high court’s ruling remain to be resolved.

BACKGROUND OF THE ISSUE

The Avitzurs, prior to their marriage in May, 1966, entered into an agreement in their Ketubah that, in the event that a dispute arose during their wedded life about their ability to live in accordance with Jewish marriage standards, either party could summon the other to a Beth Din for arbitration.

At some time before August, 1978, the woman sought to summon her spouse to a Beth Din, pursuant to the commitment in their Ketubah. Her goal was to obtain her spouse’s agreement to give her a get. In the absence of a get, the woman is an Agunah, a description in Jewish religious law for a woman who is in marital limbo, neither married nor divorced, and religiously banned from another marriage.

Rapps said the woman, as plaintiff, claimed that the purpose of the summons she sought, and obtained, in the Albany Supreme Court, was to have the Beth Din implement a get. The man, as defendant, refused to comply. She then sued for a court order that the defendant appear before the Beth Din pursuant to her request. The defendant, appealing the lower court ruling, contended that the Ketubah commitment could not be enforced in civil court on grounds such an enforcement would compel him to perform a religious ritual, in violation of the First Amendment church-state separation mandate. In the first ruling, the Supreme Court in Albany County held on October 10, 1980, that there was no constitutional ban against requiring a person to submit himself for determination of religious law to a religious tribunal “as purportedly agreed to by him in the basic prenuptial paper,” the Ketubah. The lower court ruled further that ordering the defendant to do “what he had agreed to do in advance” would not be an interference by the civil court “in or with the religious functioning of, such religious bodies.”

However, the Appellate Division, based in Albany, to which the defendant appealed the lower court ruling, held in an April, 1982 decision that it would be “a dangerous precedent to allow state courts to enforce liturgical agreements” and that a state court should not be used to compel the defendant “to appear before the Beth Din.”

SEVERAL GROUPS JOIN IN THE COLPA BRIEF

COLPA filed a brief, drafted by its vice president, Nathan Lewin, a Washington attorney, on behalf of the plaintiff, which was joined in by the Union of Orthodox Rabbis of the United States and Canada; Agudath Israel of America; National Council of Young Israel; Rabbinical Alliance of America; Rabbinical Council of America; and the Union of Orthodox Jewish Congregations of America.

Also joining in the COLPA brief was a new organization, Getting Equitable Treatment (GET) which seeks by conciliation to bring recalcitrant spouses before religious courts to resolve such problems. The Jewish Theological Seminary of America, the Conservative institution, filed a separate brief for the plaintiff.

The couple was married by a Conservative rabbi. Rapps explained that while the Orthodox community represented by COLPA differed fundamentally in religious outlook from that of the Conservative movement, COLPA undertook to back the plaintiff on the principle that the legal issues involved transcended such religious differences.

Rapps added that while Orthodox Ketubahs do not have such commitment clauses, the Court of Appeals ruling does have implications for disputes between Orthodox Jews.

REASONING OF THE HIGH COURT

The Court of Appeals, in its ruling handed down in Albany, rejected the appellate ruling, declaring that the relief sought by the plaintiff “is simply to compel the defendant to perform a secular obligation to which he contractually bound himself. In this regard, no doctrinal issue need be passed upon, no implementation of a religious duty is contemplated and no interference with religious authority will result.”

Rapps noted that the reasoning of the high court was in substantial agreement with the arguments submitted by Lewin in the COLPA brief. Rapps also noted that while the high court ruling could not apply to Orthodox Ketubahs, it would have an effect on Orthodox disputes, including those involving a wife’s demand for her husband’s agreement to a Set.

He said that, as an example, when a wife agreed to give up her alimony rights as an inducement to her spouse to give her a get and that he agreed and then reneged, no civil court has upheld the woman’s claim of a violation of a contractual obligation on the part of the husband. He said one effect of the high court’s, ruling last week is to make an arbitration action by a Beth Din as having the same court-enforceable status as any other decision by a properly constituted arbitration panel.

Since there is a constitutional issue, that is, whether the high court’s ruling involves a violation of the First Amendment, there could be an appeal by the defendant to the United States Supreme Court, Rapps said. If this happens, he added, COLPA will continue its participation in behalf of the civil courts enforceability of such an agreement.

He noted that the Ketubah of the Avitzurs makes no reference to a get, declaring merely that the parties agree to recognize the Beth Din of the Rabbinical Assembly, which is the association of Conservative rabbis, and the Jewish Theological Seminary, and its right “to impose such terms as compensation as it may see fit for failure to respond to its summons or to carry out its decision” if either party decided that the husband and wife were not living in accordance “with the standards of the Jewish law of marriage.”

SEVERAL DEVELOPMENTS LIKELY TO OCCUR

In response to the anticipated action of the woman in taking her claim back to the Supreme Court of Albany County for implementation of the Court of Appeals ruling, any of several developments might occur, Rapps said.

One is that the defendant will be required to accept the lower court order to appear before the Conservative Beth Din, subject to contempt of civil court charges if he continues to refuse. Another is that if the Beth Din, after consideration of the dispute, rules that the man must give the plaintiff a get, the man may refuse on contention that, under the prenuptial agreement, it is not clear that he is required to subject himself to a Beth Din order to give the woman a get.

The woman may, at that point, have to go back to civil court to get a court order that the Beth Din decision be enforced like any other arbitration agreement, again under threat of contempt of court penalty.

It is also possible, Rapps said, that the lower court will agree with the plaintiff that the Ketubah does not require him to submit to a Beth Din decree to give his spouse a get and that the Beth Din ruling is therefore unenforceable; or the lower court may declare that an enforcement order would involve it in a religious ritual and refuse the woman’s request. Rapps said this last option is not likely to happen but that it cannot be ruled out.