When Parties Agree to Religious Arbitration, Arbitrator's Religious Decision Is Enforceable

In S.I. v. M.I., decided Friday by the New Jersey appellate court (Judges Morris Smith and Lisa Perez-Friscia), an Orthodox Jewish couple divorced, and in the midst of the divorce proceedings agreed to religious arbitration as to whether the husband had to give the wife a "get" (the Jewish religious divorce that is required for a divorce to be viewed as valid within the Orthodox community). The arbitrator ordered the husband to give a get, but the state trial court refused to enforce the arbitrator's decree:

[P]laintiff moved to confirm the arbitration award…. [T]he judge denied the motion[], finding the court lacked "jurisdiction to confirm an award which would in effect order somebody to give a get—a religious divorce in the Jewish faith." He reasoned "the effect of that confirmation [would] … put the State of New Jersey Superior Court['s] stamp on an arbitration award telling one person they have to do something that … in their religion that is really beyond." Further, the judge found no precedent "would compel [him] … to order anyone of the Jewish faith to give another person of the Jewish faith a get."

No, said the appellate court:

[O]ur "civil courts may resolve controversies involving religious groups if resolution can be achieved by reference to neutral principles of law, but … they may not resolve such controversies if resolution requires the interpretation of religious doctrine." The New Jersey Supreme Court has recognized "that parties should be granted as much autonomy as possible in the ordering of their personal lives" and therefore "[i]t is fair and reasonable that parties who have agreed to be bound by arbitration in a formal, written separation agreement should be bound." Unquestionably, New Jersey has a strong public policy in favor of settling disputes through arbitration, including in family litigation.

Here, confirmation of the award can be granted under neutral principles of law and without interpretation of religious doctrine. We therefore conclude the Establishment Clause is not violated because the parties' arbitration agreement regarding a get serves the "purpose of enforcing the parties' contractual obligations" and "encouraging divorce litigants to resolve disputes by negotiating and entering" into marital agreements.

Additionally, enforcement does not infringe on the Free Exercise Clause as the parties voluntarily entered into the MOU [Memorandum of Understanding] arbitration provision and agreement. The record demonstrates the parties freely and knowingly agreed to resolve the issuance of the get through arbitration; thus, we conclude there is no interference with their practice of religion.

In summary, we conclude confirmation of the award pursuant to the parties' MOU and separately signed arbitration agreement falls squarely within "principles of civil contract law, not rabbinical law." Rabbi Twersky's decision to grant plaintiff [wife] the get under rabbinical law "remained solely within the province of the bei[t] din [i.e., the religious court -EV]" and did not require interpretation by the judge. Confirmation of the award strictly required a determination of defendant's [husband's] contractual obligation…. The parties' MOU, arbitration agreement, and Rabbi Twersky's decision mandate confirmation of the award requiring defendant provide plaintiff with a get in accordance with the beit din….

Ira Treuhaft (Treuhaft & Zakarin, LLP) and Boaz I. Cohen, Jonathan M. Wagner, and Daria Schieferstein (Kramer Levin Naftalis & Frankel LLP) represent the wife.