Don't try to get courts to figure out what's really "Modern Orthodox Jewish" and what isn't

|The Volokh Conspiracy |

From Storfer v. Storfer, a New York appellate decision decided two weeks ago:

There is no dispute that the child is being raised in the Jewish faith. The motion court properly found, however, that it could not determine the meaning and intention of the parties' agreement to raise their child in "accordance with the tenets of the Modern Orthodox Jewish faith." The trial court correctly determined that this cannot be decided by neutral principles of law or without reference to religious doctrine and was thus prohibited from entertaining the defendant father's enforcement application (see Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9 NY3d 282, 286 [2007]; see also Madireddy v Madireddy, 66 AD3d 647, 648 [2d Dept 2009], appeal dismissed 14 NY3d 765 [2010]).

Sounds quite right to me; as I've noted before (e.g., here), the Religion Clauses bar courts from deciding what is consistent with a particular religious doctrine and what isn't. (They often must decide, in applying religious exemption rules, whether a person sincerely believes that his religion forbids or mandates something; but they can't decide what "Modern Orthodox Judaism" really means, and whether a person's actions are consistent with it.)

There is a long line of cases (such as Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church [1969]) holding that secular courts may not resolve such questions of religious doctrine. For instance, some states had rules, borrowed from English law, under which the more orthodox group would get to keep the church property, presumably on the theory that this would be more in keeping with what was intended by past donors to the church. But the Court held that such rules may not constitutionally be applied by civil courts (paragraph break added):

First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes … the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.

The Georgia courts have violated the command of the First Amendment. The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a "substantial departure" from the tenets of faith and practice existing at the time of the local churches' affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found. Thus, the departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion—the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.

Now one could argue that this only applies to "resolving underlying controversies over religious doctrine" when called on to do so by a special state-created legal rule, such as the preference for the more orthodox group, and that such resolution of doctrinal controversies could take place when interpreting contracts, wills, deeds, trusts, and the like that are voluntarily entered into. But I think the logic of the Court's decision encompasses all civil court decisions about what is the right interpretation of legal doctrine, especially given the later decision in Jones v. Wolf (1979). And that's the view lower courts have taken: "[A] court can invoke a secular interpretation of church deeds, by-laws and canons, thereby avoiding judicial entanglement in issues of religious doctrine, polity and practice…. When the application of this standard requires judicial involvement in a [religious] doctrinal question, however, it may not be relied upon." "[P]rovisions in deeds or in denomination's constitution for the reversion of local church property to the general church, if conditioned upon a finding of departure from doctrine, could not be civilly enforced [quoting and endorsing a concurring opinion in a different Supreme Court case]." See also this decision.

And I think this rule is right, even though it does in a sense discriminate against religious practice, by singling out for non-enforcement those contracts that call for reference to religious law. The alternative, after all, is for courts to take sides in deciding which rival religious view—say, which understanding of Islamic law—is right and which is wrong, which would itself involve discrimination in favor of one religious subgroup (the one whose view is adopted by the civil courts as the true view of Islamic law, Jewish law, etc.) and against another religious subgroup. That strikes me as worse than civil court abstention from all attempts to decide how to interpret religious concepts.

Fortunately, religious observers who want their disputes settled according to religious law generally have a simple solution: They can provide for arbitration by some religious tribunal that they choose, and courts will generally then enforce the result of that arbitration. Civil courts will no longer be called to decide what Islamic/Jewish/etc. law "really" requires, yet religious believers can have their disputes adjudicated under religious principles. And in fact there are such arbitral bodies around, in a wide range of religions, and they are often used.

To be sure, while courts generally enforce arbitral awards, they are less likely to do so in child custody cases, because the person whose status is being adjudicated—the child—wasn't party to the arbitration agreement. But even so, when the child's best interests aren't jeopardized, a court may well take seriously a religious arbitration panel's decision about whether a particular term of the ex-spouses' childrearing agreement is being adhered to. What the court may not do is decide for itself whether some party's Judaism is Orthodox enough.