Rabbis said to use torture to secure divorces for women

[Malthus]

Re: the legislation.

Ah, well that is straight forward.  Its just a question of evidence.

Yup.

[Sheilbh]

What? How can you claim that his beliefs are not relevant while at the same time empowering hers?

I'm not. Whether she can remarry or not and whether he can give a get or not are things that you can find out. There's a yes or no answer.

The fact that they may believe something contrary is irrelevant. She may well firmly believe she doesn't need a get to remarry and she may believe that only a Beth Din can issue a get. But that doesn't matter for the court any more than it would matter if I absolutely believe that my tenancy agreement only requires me to pay half-rent because I'm in a smaller room.

As cc says it's a matter of evidence.

[merithyn]

What if the man refuses to give the get on religious grounds? For instance, he believes that it is his religious duty to prevent his ex-wife from remarrying for some reason or other. (I'm sure someone can come up with a legitimate reason for why that could happen.)

What does the court do then? I mean, the courts are essentially forcing the man to do something that he may have a good reason to do.

[Malthus]

What if the man refuses to give the get on religious grounds? For instance, he believes that it is his religious duty to prevent his ex-wife from remarrying for some reason or other. (I'm sure someone can come up with a legitimate reason for why that could happen.)

What does the court do then? I mean, the courts are essentially forcing the man to do something that he may have a good reason to do.

In that case, the man would have available an argument that the legislation impairs his freedom of religion, and the court would have to decide if it does or not (and, if it does, whether that impairment is justified or not). If the court was convinced the legislation impaired his rights and the impairment was unjustified, it would be struck down.

[Iormlund]

What if the man refuses to give the get on religious grounds? For instance, he believes that it is his religious duty to prevent his ex-wife from remarrying for some reason or other. (I'm sure someone can come up with a legitimate reason for why that could happen.)

What does the court do then? I mean, the courts are essentially forcing the man to do something that he may have a good reason to do.

In that case, the man would have available an argument that the legislation impairs his freedom of religion, and the court would have to decide if it does or not (and, if it does, whether that impairment is justified or not). If the court was convinced the legislation impaired his rights and the impairment was unjustified, it would be struck down.

Which is exactly my point. You have the court ruling on which belief is valid. That's not what courts should be doing.

Let the court proceed with a normal civil divorce and religious authorities deal with metaphysical crap.

[Sheilbh]

Look at it from the other way. This law allows the courts to punish a spouse who isn't taking steps within their power to allow the other spouse maximum freedom after the divorce.

Why should there not be consequences for a sort of conditional, fettered divorce? It seems to me almost like an issue of good faith.

[Iormlund]

From Malthus quote on Clean Hands Doctrine:

His/her activities not involved in the legal action can be abominable since it is considered irrelevant.

I can't see how him withholding get can be relevant, since it is clearly not needed for a legal divorce.

Even so, the only way you can tell he is acting in bad faith instead of his own religious interpretation is to have the court make a ruling on theology.

[Malthus]

What if the man refuses to give the get on religious grounds? For instance, he believes that it is his religious duty to prevent his ex-wife from remarrying for some reason or other. (I'm sure someone can come up with a legitimate reason for why that could happen.)

What does the court do then? I mean, the courts are essentially forcing the man to do something that he may have a good reason to do.

In that case, the man would have available an argument that the legislation impairs his freedom of religion, and the court would have to decide if it does or not (and, if it does, whether that impairment is justified or not). If the court was convinced the legislation impaired his rights and the impairment was unjustified, it would be struck down.

Which is exactly my point. You have the court ruling on which belief is valid. That's not what courts should be doing.

Let the court proceed with a normal civil divorce and religious authorities deal with metaphysical crap.

That's what you have every single time someone claims that religious freedom is infringed - a court ruling on whether there is any infringement and whether that infringement is justified.

It is inevitable that civil laws will, in some cases, have an impact on religious freedoms. Happens all the time. That does not mean that we should not have civil laws.

For example: members of the Native American Church believe that taking peyote is a religious sacrament. Yet taking peyote is otherwise illegal. Making peyote an illegal substance impacts on religious freedom. Same with pot and Rastas.

[Not that I agree with drug laws, mind.] 

[Malthus]

From Malthus quote on Clean Hands Doctrine:

His/her activities not involved in the legal action can be abominable since it is considered irrelevant.

I can't see how him withholding get can be relevant, since it is clearly not needed for a legal divorce.

Even so, the only way you can tell he is acting in bad faith instead of his own religious interpretation is to have the court make a ruling on theology.

Similarly, one needs a ruling on theology when arresting someone for smoking dope or taking peyote.

[DGuller]

In these examples you have conflicts between religious laws and civil laws, in which the civil laws naturally prevail.  Here we don't have a conflict, the presence of absence of gets has no bearing on any civil matters.

[Iormlund]

From Malthus quote on Clean Hands Doctrine:

His/her activities not involved in the legal action can be abominable since it is considered irrelevant.

I can't see how him withholding get can be relevant, since it is clearly not needed for a legal divorce.

Even so, the only way you can tell he is acting in bad faith instead of his own religious interpretation is to have the court make a ruling on theology.

Similarly, one needs a ruling on theology when arresting someone for smoking dope or taking peyote.

Seriously? That's fucked up.

[Malthus]

In these examples you have conflicts between religious laws and civil laws, which the civil laws naturally win.  Here we don't have a conflict, the presence of absence of gets has no bearing on all civil matters.

It isn't an automatic conflict/win - members of the Native American Church are, in fact, legally allowed to use peyote under US federal law.

http://en.wikipedia.org/wiki/Native_American_Church

Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.
—42 U.S.C. 1996A(b)(1).

This requires, among other things, a ruling on such theological matters as whether the use was for a "bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion". 

[Sheilbh]

Seriously? That's fucked up.

How's it fucked up? Surely it's what the courts are for.

What about Sikhs and the kirpan? Or blood transfusions and Jehovah's Witnesses?

Here we don't have a conflict, the presence of absence of gets has no bearing on any civil matters.

The woman's right to freely remarry as she wishes.

[DGuller]

The woman's right to freely remarry as she wishes.

She can do that without getting the get.

[Malthus]

In these examples you have conflicts between religious laws and civil laws, in which the civil laws naturally prevail.  Here we don't have a conflict, the presence of absence of gets has no bearing on any civil matters.

The right to remarry without let or hinderance has been judged a legitimate civil purpose. That's what legislators are for, in part - to decide what is, and what is not, a legitimate civil purpose.

Those challeging the legislator's decisions have to: (a) indicate that their choice violates a protected right; and (b) show that the violation is unjustified.