Residential Picketing

The marriage of Sam and Sarah Rosenbloom has long been over. Seven years ago they got a civil divorce. But Sam, now living in Gaithersburg MD, refuses to give Sarah a Jewish divorce. Until he does so, Jewish law regards them as married, and neither of them can get involved with anyone else. The problem is that he's not nearly as observant as she is — he doesn't care about this law, and she does. She attempted to sue him before an ecclesiastical court in Baltimore, but he refused the summons, and the court held him in contempt.

Unlike a civil court, though, there's not much this court can do to enforce its orders, if someone chooses to defy them. Its only weapon is social pressure. The Orthodox Union, the largest Orthodox organisation in America, has officially promoted a boycott of his business. And in February, the WaPo reported:

A dozen people came out in the rain and began, as usual, with a prayer from the book of Psalms, asking God to hear their plea. "Sam Rosenbloom, give your wife a get ," they chanted. The protests started two years ago and have occurred almost weekly for the past month.

Naturally, the neighbours object to these goings on. Montgomery County has an ordinance against residential picketing, but it doesn't apply to cities within the county. So, as the Washington Jewish Week reports, the Gaithersburg City Council is about to pass an emergency ordinance.

Can they do this? Is it constitutional? Well, as it turns out, they can, at least under the current jurisprudence of the Supreme Court. By coincidence, Eugene Volokh touched on this issue just yesterday, and referred to Frisby v. Schultz (1989), which permits content-neutral bans on picketing private residences.

The type of focused picketing prohibited by the Brookfield ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas. [..] In such cases "the flow of information [is not] into . . . household[s], but to the public." [..] Here, in contrast, the picketing is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy.

So as the law stands now, Gaithersburg can do this, and Sam Rosenbloom and his neighbours can resume the quiet enjoyment of their Sunday mornings. And Sarah Rosenbloom will remain in limbo, neither in a functioning marriage nor divorced, and there's very little that can be done about it.