Baruch HaShem, or “Thank God”; and this from a guy who was unabashedly secular —…
Man v. God
When competing courts collide in America.
Yisrael Briskman’s wife had enough.
In 2008, Chaya Dina Briskman decided the marriage to her husband was beyond repair and sought redress through the only legal avenue available in Israel for marital dissolution, the beit din, or religious court. The beit din agreed with Chaya, granting a religious writ of divorce, or get, in Hebrew.
However, in order for the get to be considered valid, her husband’s signature, pursuant to Jewish law, was required to effectuate the document.
Mr. Briskman knew this and refused to formally consent, fearing doing so would jeopardize his chances of winning a custody battle for his son. Instead, he fled the country and sought refuge in Brooklyn, N.Y. While his wife remained in matrimonial limbo, known in Hebrew as an agunah, or chained wife, the High Rabbinical Court in Jerusalem issued a statement to the media, ordering members of the Orthodox community to shun Briskman until he relented. And shun they did.
Briskman, on the lam in the U.S., attempted to find work and was intrigued by the prospect of writing a book about the Talmud with David Wax, an Orthodox rabbi who lived in Lakewood, N.J. In October 2010, Briskman traveled to Wax’s suburban house to meet with the rabbi and his wife. Upon arrival, he was greeted by two other men, who pummeled him. The attackers then blindfolded, handcuffed and dragged Briskman into the rabbi’s house. Once there, Wax kicked Briskman in the ribs and threatened to bury him alive if he didn’t agree to religious divorce. Briskman eventually relented and, at the rabbi’s insistence, verbally consented in both Hebrew and English.
In July 2011, Wax and his wife surrendered to the FBI and were charged in federal court with kidnapping and coercion.
Although the Briskman case is an extreme example, it highlights some of the problems — particularly involving consent and duress — of administering justice through religious arbitration tribunals. Jewish communities have been known to use a myriad of (legal) coercive tactics to pressure individuals to resolve disputes through religious arbiters. For instance, some rabbinical courts use websites to alert their communities of individuals who refused to submit to arbitration. Despite the specter of vigilantism, secular courts generally hesitate to get involved due to the overtly religious nature of the proceedings.
As Americans increasingly turn to secular and religious arbitration panels to settle disputes, courts must rely on their power of judicial review to ensure participants substantive and procedural due process rights are upheld while, at the same time, respecting religious tribunals’ (and their participants’) First Amendment autonomy.
When Ben Franklin Met Moses
Jewish communities have been adjudicating disputes using their own court system in accordance with Jewish law for thousands of years.
“Sadly, our experience throughout history is that supposedly secular courts have been controlled by other people’s religions, which has led to Jews not getting a fair shake in court,” said Rabbi Aaron Starr of Congregation Shaarey Zedek in Southfield, Mich.
The Torah, itself, outlines a complex multi-step judicial system as well as a legal code known as Halachah. During the diaspora, rabbinic Judaism recognized the realities of trying to operate a complex system in Muslim countries and Christian Europe and opted to preserve only the most basic three-member panel of the beit din (literally “house of judgment”), which typically consisted of three religious men, one of whom was deeply versed in Halachah.
When the United States was founded, the idea of separation of church and state was a profoundly new concept inspired by the radical ideas of the Enlightenment era. The Founding Fathers believed so strongly in the principle that they codified it in the First Amendment to the federal Constitution boldly proclaiming, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Supreme Court Chief Justice Warren Burger, writing for the majority in Lemon v. Kurtzman, later found that the purpose of these ‘religion clauses,’ referred to, respectively, as the Establishment Clause and the Free Exercise Clause, was “to prevent, as far as possible, the intrusion of either [church or the state] into the precincts of the other.”
Yet, early America was still a deeply religious country — composed of many who had fled to escape religious persecution in Europe. So when large waves of Jewish immigrants arrived to the United States in the late 19th century, their religious judicial systems were tolerated and quickly became a staple in most urban Jewish immigrant communities.
America’s secular courts, however, were not nearly as accepting. Threatened by ordinary citizens making their own law (‘ousting the jurisdiction of the courts,’ as described by many jurists), early courts often caustically set aside arbitration awards and vacated judgments.
The federal government eventually came around.
At the behest of the business community, Congress passed the Federal Arbitration Act in 1925, which made written agreements to arbitrate “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” But courts were slow to warm to the idea of extra-judicial justice, and a number of Supreme Court decisions limited the scope of the FAA. It was not until the turn of the 21st century that America’s secular legal community began to accept religious tribunals as a respectable alternative to the country’s overburdened legal system.
Let the Dance Begin:
Constitutional Issues Raised by Religious Tribunals
The increasing popularity of the beit din has forced secular courts into an uncomfortable situation: maintaining the separation of church and state while determining the enforceability of religious tribunal decisions. Courts have always refrained from adjudicating purely religious issues. Yet they continue to remain leery of intervening in religious disputes even when there are secular issues at play (i.e., employment, contract or corporate law).
As the District of Columbia trial court recently found in Meshel v. Ohev Sholom Talmud Torah, “the religion clauses of the First Amendment preclude[s] the trial court from determining … [disputes before a beit din] without impermissibly entangling itself in ecclesiastical matters.”
Occasionally, when a court takes a leap of faith and intervenes in a religious dispute, it toes the line by framing the issue in secular terms (this analytical framework is known in legal jargon as the “neutral principles approach”).
“The threshold inquiry,” wrote Judge Linda Baxter of the Superior Court of New Jersey, who was reviewing a beit din award, “is whether the underlying dispute is a secular one, capable of review by a civil court, or an ecclesiastical one about discipline, faith, internal organization, or ecclesiastical rule, custom or law. If, however, the dispute can be resolved by the application of purely neutral principles of law and without impermissible government intrusion … there is no First Amendment shield to litigation.”
The shortcomings of this approach, however, were illustrated in a New York state court decision issued by Judge Jeffrey S. Sunshine upholding a beit din finding in a dicey marital dispute.
In that New York case, Berg v. Berg, a husband alleged that his rabbi forced him to participate in the beit din (presided over by the rabbi) by threatening to issue a siruv, a form of excommunication, if he did not appear. The rabbi was an influential member of the community, and the husband feared that a finding of contempt would ruin his career and reputation. The beleaguered man repeatedly asked the rabbi to step down as an arbiter in the case, but the rabbi refused.
In addition, there were allegations of procedural misconduct favoring the wife. “During the arbitration proceedings, the arbitrators received evidence without foundation; heard testimony that was hearsay; held proceedings without [the husband] being present; refused to allow him to cross-examine to impeach the defendant; engaged in ex parte communications; and refused to require the defendant to produce evidence to support her allegations, notwithstanding demands by [the husband]. More particularly, [the husband alleged] that the arbitrators listened to an audiotape behind closed doors and then improperly told him that they would release the tape of him, which reflects inappropriate conduct toward his daughters if he sought custody.”
The beit din found in favor of the wife and ordered the husband to pay her legal fees and to reimburse her for the mortgage and other expenses; he was awarded only 28 percent of the value of the former marital residence. Mr. Berg complained that the pecuniary award was “essentially an attempt at closing off the court system to [him] and crippling [him] financially, making it impossible for [him] to ever seek judicial remedies for wrongs done, a finding particularly repulsive to our judicial system.”
In upholding the tribunal’s award in the Berg case, the trial court reviewed the matter solely under the confines of ‘neutral’ state arbitration law (i.e., by framing religious issues in secular terms) and stated that “short of complete irrationality, arbitrators may do justice and fashion the remedy to fit the facts before them, subject of course to the interdictions of public policy as set forth in the Constitution, statutes and decisional law.” An appellate court affirmed and refused to further examine the coercive effect of a siruv in any detail. It merely surmised that “the threat of a ‘siruv,’ which entails a type of ostracism from the religious community, and which is prescribed as an enforcement mechanism by the religious law to which the [husband] freely adheres, cannot be deemed duress.”
A fair finding in Berg and similar cases does not require secular judges to interpret religious doctrine in contravention of the First Amendment. Instead, a contextual understanding of the underlying religious practices and norms would suffice.
For instance, it doesn’t take a religious scholar to recognize a siruv’s deleterious effects on an observant individual’s job, family and reputation. Yet, when courts skirt these issues — or engage in only a surface-level analysis — it results in a perversion of justice that is often repeated in future cases.
There is a fundamental difference between asking a secular court to analyze kosher food regulations that inevitably entail interpretation and application of Jewish law and requiring it to neutrally assess the coercive effect of a siruv, which only requires a contextual understanding and impact of a practice. The legal system cannot continue to conduct its jurisprudential analysis in a secular vacuum impervious to society and, consequently, religious practices, at large.
According to a study conducted by the National Arbitration Forum, for a number of practical reasons the beit din and other forms of religious arbitration have become hugely popular in the U.S.
As anyone who has participated in secular litigation can attest, adjudicating disputes in U.S. state and federal courts can be a frustrating, time-consuming and costly endeavor. A 2009 Federal Judicial Center report found that costs in federal civil cases are $15,000 on average, including attorneys’ fees, for plaintiffs, and $20,000 for defendants. Beit Din of America, by contrast, charges a flat $300 fee per hour, per side, for standard arbitration.
The beit din also is attractive for non-native English speakers since the proceedings can be conducted in languages other than English, which may make participants more comfortable with the process. Individuals who are distrustful of secular courts or hesitant to allow someone who is not versed in Jewish law to rule on their case may also find solace in turning to rabbinical arbiters.
“Also, there is a principle in Judaism that counsels against airing dirty laundry out in front of non-Jews,” said Rabbi Starr about why Jews may avoid secular systems. “We want to do our best to portray a good image of ourselves to the rest of the world.”
Due to their widespread acceptance as indispensable cogs in the American legal system, the beit din is rightfully here to stay.
At the same time, the primacy of the First Amendment remains sound.
Balancing the constitutional imperative of separation of church and state with the practical realties of proper oversight will remain a tightrope act for courts in years to come.
Shakespeare once wrote, “There is no darkness but ignorance.” It follows that a certain degree of tepidness and prudence in handling religious matters is necessary, but the benefits of analyzing and understanding religious practices that are presented before courts far outweighs the costs of ignorance.”
Drew F. Cohen is a joint-degree graduate student at the George Washington University Law School and School of Business. Reach him at firstname.lastname@example.org.