The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Mammon v. SCI Funeral Services of Florida, Inc., decided Wednesday by the Florida Court of Appeal, refused to allow a fraud and emotional distress lawsuit based on a cemetery's supposed failure to provide a proper "Jewish burial." This is a correct decision, I think, and an interesting one.
When her husband was dying, Orna Mammon sought a Jewish cemetery for him (and, eventually, for her), and chose SCI Funeral Services because they said they'd provide cemetery services "in accordance with Jewish custom" and "the traditions of your Jewish faith." But a month after the funeral, she saw that non-Jews—including a Christian pastor—were also buried in the cemetery, which she viewed as contrary to Jewish custom and belief. The widow testified:
Q. Tell me what the effect of the pastor being buried at Menorah Gardens is on your husband.
A…. [I]t's not in accordance with the Jewish law. This is a Jewish cemetery.
Q. What Jewish law?
A. That no non-Jewish person should be buried in Menorah Gardens.
Q. Where does that law come from?
A. Our Jewish religion. I don't know one Jewish cemetery in Israel that has … non-Jewish people. A Jewish cemetery is a Jewish cemetery.
A Catholic cemetery is a Catholic cemetery. A pet cemetery is a pet cemetery….
Q. Okay. Why is it offensive to you to have non-Jewish people buried next to your husband?
A. Because I follow my Jewish faith correctly….
Q. You keep referring to this Jewish law regarding burials. What is the law? Where does it come from?
A. It comes from the law when Moses walked down with the Ten Commandments. We follow the Jewish law. The laws of Abraham. We follow the Old Testament….
Q. Is it your belief that the Old Testament states that a non-Jewish person may not be buried near a Jewish person?
A. I can't answer that. I am not so knowledgeable. You should ask the rabbi…. [B]ut I follow the Old Testament.
Q. But you're not sure what the Old Testament says, correct?
A. Well, I know a lot about the Old Testament, but I can't tell you specifics…. I'm not a rabbi ….
Apparently there is some dispute among rabbis "regarding whether Jews and non-Jews may be buried in the same cemetery." (Dispute? Among rabbis? Say it isn't so!)
One paper [introduced by defendants], entitled, "Burial of a Non Jewish Spouse and Children," discusses conflicting rabbinical interpretations concerning whether Jews and non-Jews may be buried in the same cemetery, and specifically, whether a non-Jewish spouse or children of an interfaith marriage may be buried in a Jewish cemetery. The other paper, entitled "Peaceful Paths: Burial of Non-Jews in a Jewish Cemetery Following a Common Disaster," acknowledges "the traditional ban on burial together of Jews and non-Jews," but recognizes "special circumstances in which such burial may be permitted."
The widow sued for "fraudulent, deceptive, and misleading" sales and advertising, in violation of Florida consumer protection statutes, as well as "intentional or reckless infliction of emotional distress." But the Court of Appeal concluded that the First Amendment "ecclesiastical abstention doctrine" required the case to be dismissed, because resolving it would require courts to determine what constitutes Jewish custom or tradition:
The Florida Supreme Court has described the ecclesiastical abstention doctrine as follows:
[T]he First Amendment prevents courts from resolving internal church disputes that would require adjudication of questions of religious doctrine. For example, the [United States] Supreme Court has stated that "it is not within 'the judicial function and judicial competence'" of civil courts to determine which of two competing interpretations of scripture are correct. United States v. Lee, 455 U.S. 252, 256 … (1982). Instead, civil courts must defer to the interpretations of religious doctrine made by the "highest ecclesiastical tribunal." Serbian E. Orthodox Diocese [for U.S.A. & Canada v. Milivojevich], 426 U.S. [696,] 709 … [(1976)]….
… [A]lthough the widow's complaint is framed in counts alleging deceptive and fraudulent misrepresentations regarding "Jewish burial customs and traditions," the disposition of those counts cannot be accomplished without first determining, as a matter of fact, what constitutes "Jewish burial customs and traditions." Thus, the dispute here, at its core, is "an ecclesiastical one about [an] 'ecclesiastical rule, custom or law,'" precluding judicial review under the First Amendment.
Our conclusion is consistent with two cases from other jurisdictions where a court dismissed a private individual's action against a secular entity because the dispute required an ecclesiastical determination: Wallace v. Conagra Foods, Inc., 920 F.Supp.2d 995 (D.Minn.2013), vacated on other grounds, 747 F.3d 1025 (8th Cir.2014); and Abdelhak v. Jewish Press, Inc., 985 A.2d 197 (N.J. Super Ct.App. Div.2009)….
In Wallace, a federal district court dismissed for lack of subject matter jurisdiction a case brought by a group of Jewish consumers alleging that the defendant manufacturer misrepresented its food products as "100% Kosher" when such products were not produced in the manner required to be considered Kosher. The court reasoned: "[T]he determination of whether a product is in fact 'kosher' [is] intrinsically religious in nature. Any judicial inquiry as to whether Defendant misrepresented that its [products] are '100% kosher' … would necessarily intrude upon rabbinical religious autonomy."
In Abdelhak, a state appellate court affirmed the dismissal for lack of subject matter jurisdiction of a case brought by an Orthodox Jewish doctor who claimed a news publication and others made defamatory statements about his alleged noncompliance with Orthodox Jewish religious requirements concerning his wife. The plaintiff had refused to grant his wife an Orthodox Jewish consent to divorce, called a Get. However, according to the plaintiff, the defendants falsely stated he had defied a rabbinical court's contempt order, known as a Seruv, requiring him to provide a Get to his wife. In affirming the trial court's dismissal, the appellate court held:
[T]o evaluate whether plaintiff's reputation suffered any injury, a jury would, of necessity, be required to determine how a Seruv Listing is viewed within the Orthodox Jewish community and whether an Orthodox Jew would be offended by another's refusal to provide a Get. To make that determination, a jury would be obligated to consider the intricacies of Jewish doctrine. Such consideration would require a jury to delve deeply into the importance of giving a Get and the disdain heaped on a man who refuses one…. Unless a jury evaluates these deeply religious questions -that are limited to the practices and doctrine of the insular Orthodox Jewish community—the jury would be unable to perform the threshold task of deciding whether the false Seruv Listing was defamatory at all.
Here, as in Wallace and Abdelhak, to evaluate whether the defendants made deceptive and fraudulent misrepresentations regarding "Jewish burial customs and traditions," the circuit court would, by necessity, be required to determine what constitutes "Jewish burial customs and traditions." To make that determination, the circuit court would be obligated to consider "the intricacies of Jewish doctrine," or matters which are "intrinsically religious in nature" and "would necessarily intrude upon rabbinical religious autonomy."
Because the First Amendment's ecclesiastical abstention doctrine precludes the circuit court from evaluating these deeply religious questions, the court would be unable to perform its ultimate task of deciding whether the defendants made deceptive and fraudulent misrepresentations regarding "Jewish burial customs and traditions." Thus, the First Amendment's ecclesiastical abstention doctrine precludes the court from having subject matter jurisdiction here….
A court's determination of whether the cemetery companies violated [Florida statutes], by mispresenting to the widow that it would bury her husband in accordance with "Jewish burial customs and traditions," would require the court first to determine what constituted "Jewish burial customs and traditions." That preliminary determination would violate the ecclesiastical abstention doctrine.
Note that observant Jews who want assurance that promises related to Jewish doctrine will be enforced—whether as to cemeteries, as to kosher food, or whatever else—can enter contracts providing for arbitration by a specified religious tribunal (among Jews, this would be called a "Beth Din"). A Beth Din could interpret the religious terms according to its understanding of religious law; and then a secular court could enforce the judgment of the tribunal, because the secular court wouldn't have to itself make any religious decisions.
Naturally, members of other religious groups could make similar agreements using their own religious tribunals (Sharia arbitration panels for Muslims, various Christian arbitration forums for Christian groups, and anything else to which the parties agree). This is basically a normal application of arbitration law, which is also used often by secular individuals and organizations.
When I've blogged about this in the past, some readers have responded that the court should have decided the matter, not by resolving what "Jewish custom" and "the traditions of your Jewish faith" meant, but by asking what the parties thought they meant. The court, the argument goes, wouldn't be "determining, as a matter of fact, what constitutes 'Jewish burial customs and traditions,'" but only determining what was in the minds of the parties.
But I don't think this can work in practice. Practically speaking, Ms. Mammon probably didn't think about this particular matter at the time the contract was entered into; and the agents of the cemetery likely didn't focus closely on this (and, to the extent they did, they likely believed that their practices were indeed sound). Any determination of what supposedly the parties thought about this would thus collapse into what reasonable parties in their shoes would have thought—which would in turn require resolving the controversy about what Jewish law requires.