In a decision that made for eye-catching headlines, a federal court upheld the conviction of a group of Orthodox Jews—including some rabbis—who, for a fee, would kidnap and torture recalcitrant husbands to force them to give a get, or halakhic bill of divorce, to wives they had abandoned. The defendants claimed that their activities were in fulfillment of a religious requirement and were thus protected by the Religious Freedom Restoration Act (RFRA). Unsurprisingly, this argument failed to convince. But the court cited two reasons for its decision where, Michael A. Helfand argues, one would have been more than sufficient:
The first reason advanced by the federal court of appeals was that the burden on the defendants’ religious exercise wasn’t “substantial” and therefore RFRA, which only protects against substantial burdens, didn’t apply. . . . [W]hen you scratch below the surface, you begin to realize there are some serious problems lurking [behind this line of reasoning]. Can courts really figure out whether individuals, in pursuit of religious obligations, have other theologically sanctioned alternatives? . . .
When courts try to determine who is entitled to a religious-liberty exception to the law on the basis of theological substantiality—for example, by trying to parse the religious alternatives available under religious law—they invariably make mistakes. And those mistakes end up receiving the imprimatur of the law, both embarrassing the law and unjustifiably burdening someone’s faith. . . .
So should the Get Torture Gang have won? Of course not. . . . [The court] emphasized . . . a second reason for rejecting the religious-liberty claim of the Get Torture Gang: “the government has a compelling interest in uniform application of laws about violent crimes and that no other effective means of such uniformity existed.”
This second justification is as elegant as it is simple. Courts must decide when society’s interests are too important to allow for religious exceptions. No matter how strongly you feel about religious liberty, society can’t function if religious justifications can allow for the kidnapping and torture of others. In the end, religious liberty is only possible if it has limits that protect other fundamental interests of the public.
The court, in rejecting the claims of the Get Torture Gang, would have been best served by focusing on this second reason. It would have put the court in the position of rejecting an extreme religious-liberty claim based upon an assessment well within its expertise: namely, what should count as an important government interest. That’s a far better place for a court to be than . . . attempting to traverse the treacherous waters of theology.
Read more on Lehrhaus: http://www.thelehrhaus.com/commentary-short-articles/2017/7/19/why-religious-liberty-cant-justify-torture-even-when-its-for-a-get