Document Type

Article

Publication Date

1998

Abstract

Civil law in the United States rarely helps to enforce religious standards or demands that people perform actions whose significance relates to religious obligations. Yet, some American states do have such involvement with certain observances of Orthodox and Conservative Judaism. Many states enforce kosher requirements, to which Orthodox and some Conservative Jews adhere. The laws, which penalize fraud in the labeling of products as kosher, serve the secular interest in preventing deception of consumers. However, the laws also force the state to decide when religious regulations have been violated.

Orthodox and Conservative Jewish divorces raise a second kind of involvement. The law pressures people to perform an act whose significance connects with a sense of religious obligation. Jewish law does not permit a woman who is divorced under civil law to remarry unless her husband grants her a get. Thus, a husband may obtain a civil divorce which effectively blocks his wife's remarriage. New York has adopted statutes that aim to force divorcing husbands to grant gittin to their wives, and judicial decisions in other states have a similar effect. These laws and rulings contribute to civil equality of men and women, and they give practical substance to the civil right to remarry. The cost is the state's interference with what is, in a sense, a religious matter. The wife is already free under the civil law to remarry after the civil divorce. Should the state not leave religious performance and ideas of religious obligation to the private realm?

These issues raise deep questions of constitutionality and wisdom. I concentrate on constitutionality, but matters of legislative and judicial wisdom lie in the background.

The aspiration of this Article is not to provide a comprehensive approach to the religion clauses, using kosher and get laws as illustrations. Rather, my positions on how courts should treat these laws highlight im portant aspects of establishment and free exercise inquiry. The analysis reveals a number of significant questions. One is how much it matters which of various judicial "tests" is employed. For example, will relevant factors be significantly different for a court that asks whether the state has endorsed a religion than for a court that asks whether a religion has been otherwise advanced? A second question concerns special difficulties when one minority religion may be favored over another related minority religion. Should Establishment Clause tests be affected by the minority status of both religions? A connected question concerns denominational preference. What is a court to do if the law actually speaks in terms of one "denomination," but members of other relevant denominations may believe that the law is appropriate? Another narrower question concerns judicial appraisal of the tenets of religious views. When should judges accept the sincere understandings of affected individuals as controlling, and when should they seek to discernm dominant understandings of members of a religious group? When should they decline to make such inquiries at all?

Disciplines

Civil Law | Law | Religion Law

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