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September 29, 2011 - Image 60

Resource type:
Text
Publication:
The Detroit Jewish News, 2011-09-29

Disclaimer: Computer generated plain text may have errors. Read more about this.

israel Briskman's wife had enough.
In 2008, Chaya Dina Briskman
decided the marriage to her hus-
band 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 Brisk-
man until he relented. And shun they did.
Briskman, on the lam in the U.S., at-
tempted 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 subur-
ban 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,
Waxkicked Briskmanintheribs and
threatened to bury him alive if he
didn't agree to religious divorce.
Briskmaneventuallyrelented 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 high-
lights some of the problems —
particularly involving consent
and duress — of administer-
ing justice through religious
arbitration tribunals. Jewish
communities have
been known to use

20 October 2011

I En 11111rAD

a myriad of (legal) coercive 'tactics to pres-
sure individuals to resolve disputes through
religious arbiters. For instance, some rab-
binical courts use websites to alert their
communities of individuals who refused to
submit to arbitration. Despite the specter of
vigilantism, secular courts generallyhesitate
to get involved due to the overtly religious
nature of the proceedings.
As Americans increasingly turn to secular
and religious arbitration panels to settle dis-
putes, courts must rely on their power of ju-
dicial reviewto ensure participants substan-
tive 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 adjudicat-
ing 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 Constitu-
tion 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 intru-
sion of either [church or the state] into
the precincts of the other."
Yet, early America was still a deeply re-
ligious 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 ju-
dicial 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 of-
ten caustically set aside arbitration awards
and vacated judgments.
The federal government eventually
came around.
At the behest of the business com-
munity, 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 uncomfort-
able situation: maintaining
the separation of church and
state while determining the
enforceability of religious
tribunal decisions.
Courts have al-

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