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September 29, 2011 - Image 61

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

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ways 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 Sho-
lom 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 eccle-
siastical matters."
Occasionally, when a court takes a
leap of faith and intervenes in a reli-
gious 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 underly-
ing dispute is a secular one, capable of
review by a civil court, or an ecclesiasti-
cal one about discipline, faith, internal
organization, or ecclesiastical rule, cus-
tom 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
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 (pre-
sided over by the rabbi) by threatening
to issue a siruv, a form of excommunica-
tion, if he did not appear. The rabbi was
an influential member of the com-
munity, 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 proceed-
ings, 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 hus-
band]. More particularly, [the husband
alleged] that the arbitrators listened
to an audio-tape 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 com-
plete 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 de-


tail. It merely surmised that "the threat
of a `siruv,' which entails a type of ostra-
cism 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 con-
travention 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 deleteri-
ous 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 be-
tween 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 under-
standing and impact of a practice. The
legal system cannot continue to conduct
its jurisprudential analysis in a secular
vacuum impervious to society and, con-
sequently, religious practices, at large.




According to a study conducted by the
National Arbitration Forum, for a num-
ber 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, charg-
es a flat $300 fee per hour, per side, for
standard arbitration.
The beit din also is attractive for non-
native English speakers since the pro-
ceedings can be conducted in languages
other than English, which may make
participants more comfortable with the
process. Individuals who are distrust-
ful 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 Juda-
ism 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 impera-
tive 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 pru-
dence in handling religious matters is
necessary, but the benefits of analyzing
and understanding religious practices
that are presented before courts far out-
weighs the costs of ignorance."

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313-277-7283 OR


DREW F. COHEN is a joint-degree graduate student

at the George Washington University Law School and

School of Business. Reach him atdfcohen@law.gwu.edu.

Rrn THREAD I October 2011 21

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