Religion and the Law

The First Amendment and Courts Interpreting Religious Terms

Prof. Michael Broyde (Emory) responds to my post from a few weeks ago.

|The Volokh Conspiracy |

Earlier this month, I blogged favorably about a Connecticut trial court decision, under the title "Civil Court Can't Decide What 'Torah Law' Means, Even if Contract Calls for Applying It." Prof. Michael Broyde at Emory University School of Law passed along this response, which I'm delighted to post. (I should note that, as I read the Connecticut decision, it rests in part on the court's conclusion that "[T]he plaintiff has not asked the court to order the parties to arbitrate their alimony and property division dispute before the Beit Din"; I do think that express agreements to arbitrate before religious tribunals should generally be enforceable, to the same extent as agreements to arbitrate before secular tribunals.)

There is No Constitutional Problems with Religious Arbitration or With Courts Resolving Religious Terms Neutrally in Contract Disputes

In a recent case[1] the Superior Court of Connecticut ruled that a ketubah (a ritual agreement mandated by Jewish Law enacted prior to a Jewish marriage) could not be enforced, even if it mandates arbitration in front of a rabbinical court.  The Court ruled that since this Ketubah refers to "Torah Law" it cannot be enforced since such enforcement violates the Establishment Clause of the First Amendment.  This approach is mistaken.

The facts of this case are simple: Husband and Wife signed a Lieberman Clause Ketubah provision directing that should they have a disagreement about the giving of a Jewish divorce, they would submit this dispute to a rabbinical tribunal to be resolved according to "Torah law."  Husband had already given, and wife had already received a Jewish divorce, but husband moved to enforce this agreement to prevent the Court from deciding matters of alimony. The Court ruled that enforcing this agreement violates the First Amendment.

Five things are disturbing about this opinion: arbitration law, constitutional law and family law are all mis-applied in the course of this opinion.

  1. No Constitutional Issues Needed to be Decided. The opinion rushes right into a constitutional law problem and avoids resolving the issues posed in this case on statutory grounds.  The opinion tells us that "Assuming, without deciding, that the Ketubah is otherwise a valid prenuptial agreement under Connecticut law, does the First Amendment to the United States constitution nonetheless forbid the court to enforce the cited provision?" This approach is wrong.  As is well known, if Constitutional questions can be avoided on statutory grounds, courts should seek to do so. This is certainly true in First Amendment law. The Court should have decided this case on statutory grounds.
  2. The Ketubah is Certainly Not a PNA. Second, it is obvious that the Ketubah in question is certainly not a valid prenuptial agreement under Connecticut law. The court set up a straw man to decide a Constitutional question, since Connecticut has detailed disclosure requirements for prenuptial agreements [PNAs] and no one could reasonably think that this agreement meets these criteria.  This is an easy PNA case and should have been decided on those grounds.  The Court hypothesizes PNA validity—and only for the purposes of striking a blow against religious arbitration—to allow it to voice its opinion on a Con Law problem.
  3. The Leiberman Ketubah is an arbitration agreement and valid. The Lieberman Ketubah looks like a binding arbitration agreement with a choice of law provision to "Torah Law," and that is the way it was understood in Avitzur.[2] The idea that one cannot have a binding arbitration agreement with a choice of law provision to any religious legal system was recently proposed in the Yale Law Journal article entitled The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional but this is certainly not the law in the United States. Arbitration agreements to submit to Sharia tribunals, Rabbinical courts and Christian panels are regularly enforced by courts.  (Yes, go right now and buy my book Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West (Oxford, 2017) for more on this!).
  4. The Agreement Between the Parties was Moot. The Ketubah in question says directly that its purpose is to insure that the parties agree to divorce according to Torah Law (i.e., the husband will give and wife will receive a Jewish divorce).  Furthermore, the court tells us that "the plaintiff has given the defendant a Get; the parties are already divorced under Jewish law" making this binding arbitration agreement moot in purpose. This agreement directs the parties to appear in front of a rabbinical court to give a Jewish divorce, which they have already done.  You cannot kill the same horse twice and you cannot have a second Jewish divorce.  The agreement is moot, as the parties have fulfilled its terms already.  It cannot be enforced more.
  5. Courts May Use Neutral Contract Rules to Enforce Religious Terms in a Contract. So too, they can certainly send parties to arbitration for interpretation if they agree to that. No one argues that a contract for delivery of "kosher food" cannot be enforced merely because the word "kosher" has more than one reasonable interpretation—courts need to determine what the parties intend and not what the word truly means in God's eye when they asked for "kosher" food. So too, courts can send the question of "kosher" to arbitration in front of a rabbinical tribunal—or even a canon law panel!—if the parties agree, even as this entails waivers of many rights protected by the Constitution, just as they may agree to arbitration generally, which entails waivers of many Constitutional rights. Arbitration law is essentially a product of Federal law under the Federal Arbitration Act, which protects even religious arbitration.  PNA are a product of state law with greater diversity of standards.

(As a final note, I agree that this case did reach the correct result by dismissing the Husband's claim, even as the reasoning was wrong.  The "divorce according to Torah Law" provision of the Lieberman Ketubah has nothing to do with alimony.  The agreement between them did not address whether and how much alimony should be paid between the parties.  There was no valid prenuptial agreement or arbitration agreement present under Connecticut law about alimony. No Constitutional issues need to be decided.)[3]

Conclusions

Courts can decide contract disputes between the parties even if the terms have a religious meaning (like "kosher") if the Court can use neutral principles of law to determine what the parties intended. The Federal Arbitration Act permits parties to submit to arbitration in front of religious tribunals in the same way that they can submit to any arbitration.  Decisions by religious arbitration tribunals ought to be enforced by the courts unless they fit into one of the few and rare grounds (like fraud) for not enforcing arbitration agreements generally: The First Amendment is not one of those grounds for good reason.

[1] Tilsen v. Benson, 2019 WL 4898971 (Conn. Super. Ct.).

[2] Avitzur v. Avitzur, 58 N.Y.2d 108, 113 (Ct. App. 1983).

[3] This Decision Also Badly Misunderstands Jewish Law. The root of the error is the Court's insistence that "Jewish Law" is somehow involved thorough the ketubah, which it seems to use as a synonym for any contractual agreements between the parties about religion.  For example, the Court tells us that:

"[A] husband's refusal to give his wife a Get has led to a number of civil cases in which the wife sought to specifically enforce a provision in a Ketubah requiring the husband to give her a Get, or which imposed certain monetary penalties if he refused. For example, in Light v. Light, 55 Conn. L. Rptr. 145, 148-49 (Conn.Super. Dec. 6, 2012) [55 Conn. L. Rptr. 145], the Ketubah stated that the husband agreed to pay his wife $100 per day from the date they separated until the husband granted the wife a Get. (emphasis added)"

This is an error of Jewish law of some importance.  The Ketubah in Light said no such thing. Rather, the parties in Light had a contract—having nothing to do with the Ketubah—for support until a Jewish divorce is given.  No Orthodox ketubah ever specifies payments until Jewish divorce. This error of Jewish Law allows the Court to image that there is actually a First Amendment problem in the enforcement of contracts that address religious issues, since it thinks they are "Ketubahs" which are religious.

The Court compounds this problem by misreading Masri v. Masri, 55 Misc.3d 487, 499, 50 N.Y.S.3d 801 (2017), which is limited to a case where the Husband has sincere religious objections to giving a Jewish divorce—not true in this case, as the Husband gave a Jewish divorce without complaint.  Masri discusses the New York Get Law and there was no contract at all.  Had there been a contract, it would have been enforced; one can does not raise First Amendment objections to a contract one agreed to.  Indeed, it is very hard to argue (absent a separate contract like the kind found at https://theprenup.org/) that the Ketubah itself ever mandates that a secular court can order a Jewish divorce to be given (although there are ossified cases in New York and elsewhere that make such an argument).  For this reason, separate contracts are used that can be adjudicated.  By obfuscating the Jewish Law issue, the Court here incorrectly notes that enforcing a ketubah to direct a get be given is difficult and then undermines Light.  In Light the court is merely enforcing a secular agreement.  The misunderstanding of Jewish law impacts American law.

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  1. Unless there is a legal term of art with which I am not familiar, I believe that there is a typo in Rabbi Broyde’s article: “Establishment Claus” -> “Establishment Clause”.

    1. Whoops, fixed, thanks!

      1. Yes, but Eugene, can you fix this?

        https://forward.com/news/breaking-news/174875/rabbi-michael-broyde-booted-from-religious-court-o/

        Surely one has to wonder whether the “First Amendment” views espoused here reflect that earlier episode involving “fake names,” some of which were names that can be found in the phone book, and hence names of very real people? And what would your own take be on the use of fake names to promote one’s own ideas, Eugene?

    2. I don’t understand how an agreement to deliver kosher food is enforceable under most circumstances.

      Adam contracts with Ben to “deliver kosher food” on a particular day. Ben is an ultramodern Jew and believes that kosher food is anything that doesn’t include shellfish. Adam is hyper orthodox and believes that if meat and cheese are in the same room together they’re inedible.

      Ben delivers bacon cheeseburgers with fish sauce. Adam sues.

      If Ben alleges that he thinks kosher means what he delivered, and Adam alleges that Ben is wrong (Not that he knew he was wrong, just that he’s in error), how can that ever be adjudicated by a court? The court must necessarily determine the true meaning of “kosher” to resolve the case, since the theory of breach is a failure to follow the meaning of the words in the contract, not that it was any attempt at a shortcut.

      1. “If Ben alleges that he thinks kosher means what he delivered, and Adam alleges that Ben is wrong (Not that he knew he was wrong, just that he’s in error), how can that ever be adjudicated by a court?”

        The same way the “stewing chicken/frying chicken” case was adjudicated. You declare that there was no meeting of the minds as to what was to be delivered, and thus no contract. Next case, please.

      2. Suppose Amazon guarantees a package will be delivered by Christmas if you order by a certain date and pay for express shipping. Can Amazon claim that such a contract is unenforcible because a secular court can’t decide whether Christmas occurs in December 25 or on the Eastern Orhtodox date, as that would be a religious question?

        What about a court order to appear in court on Monday August 11? Can a person claim such an order is unenforcible because his religion honors the Moon on a different day of the week, and Augustus in a different month of the year?

        What’s the difference? English is filled with terms of religious origin that have taken on a common, everyday meaning. A civil court can’t enforce all the details, decide whether the knife was sharp enough or whether the animal had invalidating lung lesions. But the person who claims to keep kosher and says bacon is kosher is probably going to be much rarer than the person who keeps Greek Orthodox Christmas rather than December 25. If a civil court can hold Amazon broke its Christmas delivery contract based on a commonly understood meaning of when “Christmas” occurs, if it can order a person to appear on the Moon’s day, why can’t it say that bacon isn’t kosher based on basic, commonly understood concepts of what kosher means, concepts which have become common vocabulary rather than purely religious in nature?

  2. A man in a red suit that delivers writings of the appropriate state approved religion to children during the last week of December?

    1. Well, our philosophical issue is with unreasonable entry (searches) and seizures, not reasonable entry and gifting.

      In any case, he uses magic to know what you’re doing anyway, and doesn’t even need search.

      1. “In any case, he uses magic to know what you’re doing anyway, and doesn’t even need search.”

        That’s just a cover story. Actually, he has informants EVERYWHERE.

  3. I realize a lot depends on the exact terms of the agreement, and I am not sure exactly what they are.

    It appears however that either

    (1) the parties only agreed that the “get” aspects of their divorce would be subject to “Torah law,” in which case the parties simply didn’t agree to have “Torah law” cover the financial aspects and this should be denied as a simple matter of contract interpretation, or

    (2) the parties agreed that their entire divorce would be covered by “Torah law,” but their only arbitration agreement was their Lieberman Clause provision, and hence they only agreed to arbitration for the “get” aspects of their divorce. In this case I would agree with Professor Volokh that the court reached the right result for the wrong reasons. It would need to deny the use of “Torah law” to cover the financials. Perhaps there might be situations where it might be totally obvious what the parties intended, even in religious matters. Perhaps you wouldn’t need an arbitrator to conclude that delivering pork doesn’t fulfill a contract for “kosher.” But the financial arrangements of a divorce doesn’t seem to be one of them. The plaintiff had argued that “Torah law” doesn’t require any alimony. But as one quick google search example shows, in the divorce that led to the South African Supreme Court upholding a beit din excommunicating a man, the beit din had ordered alimony and the man didn’t pay. So it’s by no means clear that it is never required. So even if there are cases so obvious a civil court could decide them with no First Amendment violation, as a matter of clear intent of the parties rather than religious law, this isn’t such a case.

    In both cases, I agree with Professor Volokh that the court’s language cast doubt on the Constitutionally validity of religious arbitration clauses generally. And there is no such doubt.

    1. I’ll point out to Professor Volokh that if any contract containing religious provisions requires arbitration, then an general employer could easily break an explicitly negotiated religious accommodation contract. If a civil court can’t determine what the “Jewish sabbath” or “Muslim prayers” are in a contract giving the respective employees the right to take time off for the respective activities, a lot of standard agreements would be nullified.

      One could debate what a contract permitting an employee to take the “Jewish holidays” off means at the edges, as there are some pretty minor ones. But it ought to be pretty obvious, without needing an arbitrator, that the parties intended such a contract to cover days like Yom Kippur.

  4. “This Decision Also Badly Misunderstands Jewish Law.”

    That part bothers me.

    1) A religious neutral decision should not required any knowledge at all of the religious details.

    2) Who or what authoritatively defines what Jewish Law says for the judge to understand? IMHO, if we have a million people calling themselves Jews, then we have one million valid versions of what Jewish Law means. Perhaps understated, the other 7 billion non-Jewish people can also put forward 7 billion versions of what Jewish Law means.

    1. 1) The parties are free to have an arbitrator who is not a religious neutral, and who decides the matter on grounds that are not religiously neutral. And a court can enforce that agreement and the award (subject to its own public policy objections).

      2) The parties, as they pick who the arbitrator is, and set forth the standards the arbitrator is going to follow. Interpreting the Torah doesn’t raise any interpretation problems that are distinct from normal contract interpretation. Parties often use terms like “reasonable price” in their contracts, and the term can mean many things to many people. Courts often disagree with each other about what secular law means, too.

      1. When a court redefines what “reasonable price” means in order to resolve a dispute between two merchants, it’s not the same thing as when a court redefines what a term of religious art means to followers of that religion.

        If, for example, in deciding a dispute among Christians that “holy days” means Easter and Christmas, but one or both of the parties thought “holy days” also means All Saints Day, the court is telling them they were wrong about an aspect of their religious belief. That’s bad. It only gets worse if they resolve a dispute between Jews on the assumption that “Holy Days” means Easter and Christmas.
        A court can (and should) take religious practices into consideration when they affect something that properly falls under secular jurisdiction. For example, avoiding ordering child custody visitations on the Sabbath because one or both parents believe that transferring the child from one parent to the other is considered “work” and thus forbidden on the Sabbath day. But if the parents have differing beliefs about exactly which day IS the sabbath, the court shouldn’t be picking one parent’s preferred observance at the expense of the other’s.

        1. Suppose Amazon guarantees a package will be delivered by Christmas if you order by a certain date and pay for express shipping. Can Amazon claim that such a contract is unenforcible because a secular court can’t decide whether Christmas occurs in December 25 or on the Eastern Orhtodox date, as that would be a religious question?

          What about a court order to appear in court on Monday August 11? Can a person claim such an order is unenforcible because his religion honors the Moon on a different day of the week, and Augustus in a different month of the year?

          What’s the difference? English is filled with terms of religious origin that have taken on a common, everyday meaning. A civil court can’t enforce all the details, decide whether the knife was sharp enough or whether the animal had invalidating lung lesions. But the person who claims to keep kosher and says bacon is kosher is probably going to be much rarer than the person who keeps Greek Orthodox Christmas rather than December 25. If a civil court can hold Amazon broke its Christmas delivery contract based on a commonly understood meaning of when “Christmas” occurs, if it can order a person to appear on the Moon’s day, why can’t it say that bacon isn’t kosher based on basic, commonly understood concepts of what kosher means, concepts which have become common vocabulary rather than purely religious in nature?

  5. “if we have a million people calling themselves Jews, then we have one million valid versions of what Jewish Law means”

    You underestimate.

    “We all nod our heads in agreement when we hear the phrase, “Two Jews, three opinions.” We similarly chuckle when we hear the anecdote about the Jew who was discovered after years of living alone on a desert island. His rescuers noticed that he had built two huts aside from the one he lived in. He told the puzzled people who saved him that they were shuls, or synagogues. When asked why he needed two shuls, he retorted, “One is the one in which I pray, and the other is the one into which I would never set foot.” Rabbi Dr. Tzvi Hersh Weinreb

  6. Two general types of claims might surface if the Courts take on religious claims.

    First, you might wind up with claims that can be adjudicated readily, because there is general agreement among a religious community as to what the answer is. Second, you might wind up with claims that can’t be adjudicated readily, because there isn’t a general agreement among a religious community.

    For cases that fall in the second category, courts have no business attempting to select among competing religious interpretations.

  7. Can someone explain to me how, as Profs. Broyde and Volokh seem to take for granted, a prenup or divorce constitute interstate, foreign or maritime commerce, which are the prerequisites for invoking the Federal Arbitration Act? Section 2 of the FAA seems to require that the underlying transaction involve the jurisdictional elements, and the formation and dissolution of marriages don’t intuitively appear to do so.

    1. Er… if you’re married in one state, you’re married in all the states?

      Best I can do off the top of my head.

    2. Not sure where you’re reading the FAA into the discussion. Even if the FAA doesn’t apply, that doesn’t mean an arbitration agreement isn’t enforceable under state law.

  8. I wonder if there is any analogy to be made to Judge Kozinski’s concurrence in LaPine regarding whether the court can be called upon to make interpretations under a framework set forth by private agreement which differs significantly from the general law and procedures by the Court. “I would call this case differently if the agreement provided that a district judge would review the award by flipping a coin or studying the entrails of a dead fowl.”

  9. Refusing to enforce religious law keeps the courts out of a bigger thicket, which is invalidating religious contracts as against public policy.

    Better to say “we have no power to enforce some contract that purports to require interpretation of Sharia” or some other conservative religious body of law, than to have to offend religious believers (and perhaps run into First Amendment limitations) by saying that the government objects to their beliefs and will not enforce them on that basis.

    1. I think your comment about “conservative religious body of law” is telling.

      Only religion you disagree with violates the Establishment Clause? You’d have no problem enforcing religion you agree with?

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