The Volokh Conspiracy
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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 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.
- 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.
- 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.
- 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. 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!).
- 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.
- 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.)
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.
 Tilsen v. Benson, 2019 WL 4898971 (Conn. Super. Ct.).
 Avitzur v. Avitzur, 58 N.Y.2d 108, 113 (Ct. App. 1983).
 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.