New York Trial Court Holds State's "Get" Law Unconstitutional In Some Applications

In an important decision handed down last week, a New York state trial court held unconstitutional, at least in some situations, the New York statutory provision allowing a divorce court to pressure a Jewish husband economically to give a Jewish religious bill of divorce ("get") to his wife.  Under New York's DRL §236B(6)(o), when a wife sues for divorce the court may consider her husband's maintenance of a barrier to her remarriage in deciding on distribution of marital property or the award of spousal maintenance.

In Masri v. Masri, (NY Sup Ct Orange Cty, Jan. 13, 2017), the court recognized that a previous state appellate case had upheld the constitutionality of the statutory provision where the husband has withheld a get to extract concessions from the wife in the matrimonial litigation. However the court distinguished the case before it from that precedent. The court said in part:

The withholding of a Get to extort financial concessions from one's spouse constitutes simony, i.e., an exchange of supernatural things for temporal advantage. When the husband himself so unambiguously subordinates his religion to purely secular ends, he may properly be said to have forfeited the protective mantle of the First Amendment, and the court may, quite rightfully and without constitutional hindrance, impose the secular remedies authorized by the Domestic Relations Law.

Here, however, there is not the slightest evidence that the Defendant has withheld a Get from Plaintiff to extract concessions in matrimonial litigation or for other wrongful purposes. According to Plaintiff's own evidence, Defendant has invoked religious grounds for refusing to cooperate in obtaining a Jewish religious divorce, i.e., that Plaintiff by going to secular court has waived her right to rabbinical arbitration concerning the Get....

... [I]n the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments.... There is no evidence that the Defendant has withheld a Get to extract concessions ... or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment.

New York Law Journal reports on the decision.