Separation of Church and State

Civil Court Can't Decide What "Torah Law" Means, Even if Contract Calls for Applying It

So holds a Connecticut decision, I think correctly:


From Tilsen v. Benson, decided last month by Connecticut Superior Court Judge Daniel J. Klau, but just posted on Westlaw:

The plaintiff seeks to enforce a Jewish marriage contract, known as a "Ketubah," contending that it is a valid prenuptial agreement. In relevant part, the Ketubah states that the parties "agreed to divorce (or, separate from) one another according to custom all the days of their life (i.e., as a continuing obligation) according to Torah law as in the manner of Jewish people." (Emphasis added.) The plaintiff argues that "Torah law" mandates a 50/50 division of property and relieves him of any obligation to pay alimony to his wife of nearly thirty years. The defendant disagrees and generally contests the validity of the Ketubah as a prenuptial agreement.

This memorandum of decision addresses a narrow yet dispositive issue: 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? For the following reasons, the court answers that question in the affirmative….

The parties married on December 3, 1989, in a ceremony conducted in accordance with Jewish tradition. Shortly before the marriage ceremony the parties signed their Ketubah—a traditional Jewish marriage contract written in Hebrew and Aramaic. Solely for the purposes of this ruling, the court accepts as accurate the plaintiff's English translation.

As noted, the Ketubah states that the parties agreed to divorce "according to Torah law …" It further provides that the parties "agreed to accept upon themselves the Rabbinic Court [the Beit Din of the Rabbinical Assembly] to instruct them in the terms of Torah law … [and to] respond to the summons of the other to appear before above-referenced Rabbinic Court, or one mutually agreed upon, to the end that both of them can live in compliance with Torah law all the days of their lives." {[T]he plaintiff has not asked the court to order the parties to arbitrate their alimony and property division dispute before the Beit Din.} {The court does not decide whether the first amendment would bar the court from granting the types of relief that the plaintiff has not sought. But any request for a judicial order enforcing the Beit Din provision would raise serious first amendment concerns.} …

[It is] apparent that a trial on the validity and interpretation of the Ketubah would involve competing expert rabbinical testimony. That is, the court would have to choose between competing interpretations of the Ketubah's requirement that the parties' divorce should accord with "Torah law." …

"Courts have considered it constitutionally appropriate to resolve cases using neutral principles of law so long as they do not implicate or are not informed by religious doctrine or practice. Courts have properly resolved property disputes … so long as the disputes may be resolved by the application of ordinary principles of property law and without resort to ecclesiastical matters … Similarly, contractual matters, including employment disputes, may be resolved by the secular judicial system in other than religious contexts. Thus, ordinary business contracts may be litigated civilly, as may employment disputes with secular employees." …

"[I]n undertaking … an examination [of religious documents], a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining" the parties' intentions…. [C]ourts cannot "take sides" in inherently religious disputes….

The court concludes that it cannot interpret the "Torah law" provision of the parties' Ketubah using strictly neutral, secular legal principles. To the contrary, granting the plaintiff the specific relief he seeks based on his preferred interpretation of the Ketubah and Jewish law would excessively entangle the court in a religious dispute and, therefore, would violate the first amendment….

This case appears to be one of first impression among published opinions, certainly in Connecticut, if not nationally. Distilled to its essence, the plaintiff's argument is that the "Torah law" provision of the parties' Ketubah is no different from any other choice of law clause in a civil contract.

To educate the court about the parties' chosen law, the plaintiff submitted the affidavit of a rabbi, who would presumably testify at trial, describing his understanding of Torah law as it pertains to alimony and property division. The defendant also submitted the affidavit of a rabbi. However, the defendant's rabbinical expert disagrees with the plaintiff's rabbinical expert. [The court doesn't discuss whether one of the rabbis disagreed even with himself. -EV]

It is clear, then, that enforcement of the "Torah law" provision in the Ketubah would require the court to choose between competing interpretations of Jewish law. But resolving such a dispute is precisely what the neutral principles approach forbids a court to do. The first amendment does not permit courts to resolve disputes over the meaning and interpretation of the Torah—or the Koran, the New Testament or any other religious text. This is where the plaintiff's analogy to traditional choice of law analysis breaks down. Construing the civil law of a foreign jurisdiction (other than a pure theocracy) does not require a court to choose between competing interpretations of religious law. In other words, traditional choice of law provisions generally do not have first amendment implications.

One … commentator on first amendment issues offers the following hypothetical, which helps clarify the limits of a court's power to interpret documents with religious implications or motivations.

"Religiously motivated contracts (and wills and trusts) should be interpreted the same as secularly motivated documents, so long as they can be interpreted using neutral principles and without evaluating religious doctrine. That makes sense as a matter of contract law and wills and trusts law, and required by the Free Exercise Clause principle that people ought not be discriminated against based on the religious nature of their practices. See, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah (1993)."

"Thus, to take the simplest example, imagine a man dies and leaves a will that provides that 2/3 of his property will go to his son and 1/3 to his daughter, and it's clear that this stems from his understanding of Islamic law, under which sons should get twice the share of daughters. Such a will, it seems to me, must be enforced, even if we think it stems from a sexist religious belief system. People are entitled to be sexist—and religiously motivated—in deciding whom to leave their property to."

"On the other hand, if a man leaves a will that provides for division 'according to the principles of Shari'a,' courts can't enforce that, because that requires courts to interpret what Islamic religious law actually calls for, something that they can't do." Eugene Volokh, "Court Refuses to Enforce Islamic Premarital Agreement That Promised Wife $677,000 in the Event of Divorce," last modified September 10, 2012), available at court-refuses-to-enforce-islamic-premarital-agreement-that-promised-wife-677000-in-the-event-of-divorce.

The court shares the view of first amendment law expressed above. The "Torah law" provision in the parties' Ketubah is functionally indistinguishable from the "Shari' a law" provision in the hypothetical will. Interpreting what Hebrew, Islamic, Christian, Hindu, etc. law or religious doctrine requires in terms of alimony and property division is precisely the sort of task that would excessively entangle courts in inherently religious matters. The specter of a civil court being forced to decide which religious experts' proffered interpretation is more "credible" is also troubling.

{The plaintiff cites In re Marriage of Goldman (Ill. Ct. App. 1990) as precedent for civil courts to interpret the "Torah law" provision in the parties' Ketubah. The trial court in that case interpreted a Ketubah provision very similar to the one at issue here. Based on "uncontroverted expert testimony," the trial court accepted the wife's argument that the general reference to "Torah law" required the husband to give her a Get. The court ordered specific performance of that obligation. The Illinois [court] affirmed and rejected the husband's argument that the first amendment barred the trial court from ordering him to give his wife a Get.

The court agrees with the plaintiff that in re Marriage of Goldman is relevant precedent, but it is not binding on a Connecticut Superior Court. It is also distinguishable because it involved uncontroverted expert testimony. The court declines the plaintiff's invitation to follow that case. More persuasive is Victor v. Victor (Ariz. Ct. App. 1993), in which the Arizona Appellate Court held that a comparable provision in a Ketubah was too vague to be enforceable. "If this court were to rule on whether the ketubah, given its indefinite language, includes an unwritten mandate that a husband under these circumstances is required to grant his wife a get, we would be overstepping our authority and assuming the role of a religious court. This we decline to do."}

Finally, this court … is unpersuaded that the distinction under Jewish law between laws governing the relationship between man and God and laws governing relationships between men avoids the first amendment problem in this case. The court acknowledges the distinction within Jewish law. Nevertheless, both categories of laws are rooted in the Torah and other textual sources of Jewish law. Even disputes over the correct interpretation of Jewish civil laws are disputes over the meaning and requirements of Jewish law. From the perspective of an American civil court—state or federal—such disputes are inherently religious….

The neutral principles approach requires civil courts to refrain from deciding disputes involving matters of religious faith, law, doctrine, practice and the "true" meaning of religious texts. Here, enforcement of the "Torah law" provision of the parties' Ketubah would require the court to choose between competing rabbinical interpretations of Jewish law. This the court cannot do without violating the first amendment….


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  1. Why does the court have to throw up its hands and claim it’s incompetent to decide between different interpretations of Torah law? Did the contract say that disputes were to be resolved by “the Rabbinic Court [the Beit Din of the Rabbinical Assembly]”? Or is the “Rabbinic Court” not adequately defined by the contract?

    1. Because that requires the court to choose between conflicting interpretations of religious law; ie, make a religious decision.

    2. Sorry — I edited out the court’s note on that, but your comment led me to add it back. Here’s what the court said: “[T]he plaintiff has not asked the court to order the parties to arbitrate their alimony and property division dispute before the Beit Din.” “The court does not decide whether the first amendment would bar the court from granting the types of relief that the plaintiff has not sought. But any request for a judicial order enforcing the Beit Din provision would raise serious first amendment concerns.”

      1. But isn’t the Connecticut court wrong when it says that “any request for a judicial order enforcing the Beit Din provision would raise serious First Amendment concerns”? To be more precise, isn’t the right answer to refer the question to a Beit Din rabbinic court to resolve the issue and then enforce the judgment of the Beit Din? This strikes me as exactly what the Supreme Court required in Watson v. Jones (1872). It seems to me also to be what the Seventh Circuit did in McCarthy v. Fuller, 714 F.3d 971, 976 (7th Cir. 2013) when it requested an amicus brief from the Vatican as to whether one of the parties to the case could accurately refer to herself as a member of an order of Roman Catholic nuns. This is also the conclusion of the Mississippi Supreme Court, which has held that civil courts are required by the First Amendment to submit any unresolved religious issue relevant to a dispute to the religious body with authority to decide the issue. The civil court’s role is then to enforce the decision of the religious authority. See Greater Fairview Missionary Baptist Church v. Hollins, 160 So.3d 223 (Miss. 2015). So why not do the same thing here?

  2. Construing the civil law of a foreign jurisdiction (other than a pure theocracy) does not require a court to choose between competing interpretations of religious law. In other words, traditional choice of law provisions generally do not have first amendment implications.

    So what *does* the court do when it is called on to interpret a contract whose choice of laws provision says it is to be governed by the law of the Kingdom of Saudi Arabia?

    1. Good question; I discuss it at pp. 438-41 of this article.

  3. I think Ketubahs are treated with varying degrees of seriousness, adopted by many largely as a matter of tradition. If there were specific terms included it would be interesting to see how a court would grapple with determining the understanding of the parties.

  4. It seems the solution would be to explicitly spell out the requirements in a contract without resorting to appeals to religious law. In other words, recast the (presumably) mutual understanding in purely secular legal terms that happen to coincide with the religious law outcomes (assuming that those outcomes do not violate any legal requirements under civil law). This approach would ensure that the religious contract’s intention could be enforceable without the need for the courts to try to determine what the religious law means.

    This would require more up-front work, but it would seem that in most cases, that work would be reusable as a template for similar cases in the future. But without that, appealing to religious law would be like declaring that the outcome should be based on whatever a group of people on the street interpret the text to be and then expecting the courts to declare which of them has it right.

    1. Sometimes, that would work. Other times, it’s just too hard. As I understand Islamic law, and I do not claim expertise, sons automatically inherit two portions of the father’s estate to one for the daughters. A Presbyterian could walk into a lawyer’s office and get a will that makes exactly the same distribution, for all sorts of non-religious reasons, and so could a Muslim, whether his reasons are religious or secular. No need for anyone to interpret sharia law. But you can’t anticipate everything. A secular will or contract requiring, say, the application of Florida law could, in theory, be replaced with one that spells out what Florida law happens to require for any situation you anticipate. But only what you anticipate, and even then it’s a lot of work.

  5. We have a very nice Ketubah in our bedroom. My wife frequently reminds me of my duties.

    1. A Jew in command of the Imperial Navy?

  6. Sounds about right, but I have to ask: if the plaintiff and defendant did agree on Rabbinical law, would the court have moved forward?

    In that case, it wouldn’t be saying that any one interpretation is right or wrong (which is obviously a problem), just that per mutual agreement, the court is considering rules X. Whether “rules X” is a valid interpretation of the Torah wouldn’t have to be answered.

    Lacking such agreement between the parties, this makes sense though. You can’t write in your contract “per the rules of Calvinball” and expect it to be upheld.

    That said…

    But any request for a judicial order enforcing the Beit Din provision would raise serious first amendment concerns.

    Why? A contract can demand folks go through arbitration rather then civil courts, and even allow that only one party gets to choose the arbiter, and I’m not sure this is meaningfully different. The only hangup I can see is if there was disagreement over which Rabbinical court to use.

  7. Another interesting question for Professor Volokh.

    A Ketubah typically states the spouses will give each other a ‘Get’ in the event of a divorce. It is like a contract clause. Can a secular court actually enforce this provision? And force a spouse top give a ‘Get’ to the divorced spouse?

  8. “…The defendant also submitted the affidavit of a rabbi. However, the defendant’s rabbinical expert disagrees with the plaintiff’s rabbinical expert. [The court doesn’t discuss whether one of the rabbis disagreed even with himself. -EV]…”

    Okay, that’s a funny comment, Eugene. Even if (because???) it’s based on a joke that might go back some 5,000 years.

  9. If I read the article correctly, the laws of Israel state that family law questions are to be governed by the religious laws of the parties’ community, so if the parties had agreed to govern their marriage by the laws of Israel, the court would indeed have to interpret Jewish religious law.

    1. . . . in Israel. This is a US case, and follows US constitutional law, which is rather more constrained when it comes to giving religious provisions the force of law.

  10. I’d say that – especially where a contract interferes with the rights of third parties (eg, marital contracts affecting children), the government should try to have the contract enforced.

    This is difficult in a secular state where the contractual terms rely on religious interpretation.

    The way out of that dilemma is to have the religious parts of the contract enforced through arbitration, with the arbitrators, or the appointing authority for the arbitrators, is specified carefully in the contract in non-religious terms (eg, “an arbitrator appointed by the President of Bob Jones University”). Then a secular court would be able to enforce arbitration by a private religious arbitrator, without getting its hands dirty directly by interpreting religious tenets.

    1. Rewrite of first sentence – “*except* where a contract interferes with the rights of third parties” etc.

  11. Could the court not have used perfectly secular rules on allocation of burden of proof here? That expert witnesses disagree isn’t too unusual, often they will involve subject matters that go way beyond the ken of lawyers, and frequently courts will then sidestep the issue “what the science really says” in favour of either objectively identifiable characteristics of the expertise/expert (published in peer reviewed journals etc) and or burden of proof.

    Alternatively, as this is a contract dispute, would the right question not have been anyway if there is evidence to determine what the parties thought the provision meant, rather than its meaning in an “objective” theological sense?

  12. It seems particularly perverse to use the separation of church and state mandate to invalidate religious practice and substitute for it the state’s practice. I guess free exercise ends at the church doors.

    1. On the contrary, the court here is not attempting to subvert anyone’s religious practice. They are attempting to avoid doing that, by refusing to issue a precedential interpretation of religious doctrine that could constrain others who wish to practice a different interpretation. If the parties here wanted a particular outcome in accordance with their religion, all the had to do was spell that desired outcome out in contract law, and it would’ve been perfectly enforceable. But they wanted to leave the interpretation of that law up to the court itself, which is constrained to decline doing so, lest it violate the rights of others.

      The short version is that you’re free to create and sign contracts that have a religiously motivated basis wherever and however you like, but you need to make sure the terms are explicit if you expect a court to enforce them.

  13. It appears the dispute hear is about the financial settlement, not about a specifically religious issue like whether or how to have a religious divorce.

    The parties designated the Beit Din of the Rabbinical Assembly of Conservative Judaism as their instructor on “Torah Law.“ If they want to know what Torah Law means, they need to submit a question to that body. And if they don’t want to, or if the Rabbinical Assembly doesn’t do or they didn’t agree it would do the financial settlement portion of their dispute, then I agree that the court is correct here that a civil court cannot determine what “Torah law” means regarding such a complex and disputable topic as alimony and property settlements.

    It seems to me that the Supreme Court of Illinois’ decision that a religious marriage contract implies an agreement to undergo a religious divorce is easily distinguishable, even assuming it is right on that issue. In this case there is no single, clear, simple, undisputed course of action involved. There are many possible ways property can be divided and alimony determined.

    So their options are to go to the Beit Din for an answer, or accept a civil law judgment.

    I disagree with the dicta in the judge’s opinion that going to the Beit Din would raise serious constitutional issues. This would in fact be the appropriate thing to do if the parties agreed their dispute On these issues would be governed by religious law and decided by a religious arbitrator. Using the parties’ agreed arbitrator would preserve their First Amendment religious freedom and liberty of contract rights, and prevent any Establishment Clause issues by keepimg the state out of the matter.

  14. “…there is no Constitutional problems…..” but there is a matter of dis-agreement in this section headline.

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