Hadassah-Brandeis Institute

What Powers, if any, Are Assigned to Rabbinic Courts in American Civil Law?

June 3, 2014

By Esther Macner

The First Amendment to the U.S. Constitution protects individual liberties by prohibiting government sponsored promotion of religion (the "Establishment Clause"), on the one hand, and protecting the right to freely practice religion without government interference, on the other (the "Free Exercise Clause"). However, where one's religious conduct harms others, government must interfere to protect the public good and constitute our "public policies."

The individual freedom to contract is, likewise, protected and enforced except where enforcement would violate the public good. Parties to a dispute may choose to agree to resolve their disputes outside of the civil courts, and may choose which laws, if any, will govern. Arbitration is a method, borne out of contract law, in which disputing parties freely choose to vest authority in a designated person or panel, to pass judgment on their respective claims. These judgments, are termed "awards" and will be enforced in the civil courts just as any judgment adjudicated by a civil court judge.

The powers accorded to Rabbinic Courts are as broad and unfettered as the arbitration provision or agreement allows, curbed only where strong public policies are contravened, or where the usual defenses to a contract is present — such as bias or fraud on the part of the arbitrators, coercion or duress in the procurement of the arbitration agreement. Courts will not review the merits of a Rabbinic Court award or "p'sak," no matter how egregious, effectively deferring and enforcing the awards that are based on religious law, or equities.

Moreover, Courts will compel arbitration to the Rabbinic Court designated in an arbitration provision of a contract or arbitration agreement. Constitutional challenges based on the First Amendment's mandate of "separation of church and state" is overcome by the "neutral principles" of the Religious Question Doctrine – that is, a method which relies on objective principles of secular law — to wit, the enforcement of contracts, without entanglement with religious doctrine upon which the arbitrators decisions are derived.

Although Jewish law requires that all but criminal cases be adjudicated in a Rabbinic Court, many observant Jews seek the predictability of the civil courts in commercial matters. However, in personal status matters —such as divorce — Orthodox, Conservative, traditional Jews (as opposed to Reform Jews), and the State of Israel do not recognize civil divorce as overriding the requirement of a Jewish divorce (get). Unlike civil law, marriage and divorce are contractual and may only be severed by the will of both parties, not by a civil or a Rabbinic Court. A woman whose husband refuses to give the get may not remarry in the faith, and remains an "aguna," chained to a dead marriage, with all of the attendant social and financial consequences. If she does remarry, without a get, children from the second marriage are deemed mamzerim (illegitimate for certain purposes) and are restricted in whom they and their progeny may marry.

In my experience representing women in Rabbinic Courts, as an attorney, the most difficult aspect is the lack of uniformity and transparency among the various Courts. Nonetheless, I maintain that representing women in these courts serves to improve the professionalism of the procedures, as the rabbis are on notice that an attorney may always move to vacate an award — such as where bias (failure to disclose monetary or other relationship to the litigants) or ex-parte communications with the parties or their rabbinic advocates transpires. Also, attorneys may insist on the use of discovery devices- such as subpoenas of documents or witnesses- and provide a thorough dossier of exhibits to the attention of the rabbinic panel. Finally, women feel more comfortable with another women in the room when facing an all male panel, male rabbinic advocates and the estranged husband.

Attorney Esther Macner, is founder and director of Get Jewish Divorce Justice in Los Angeles, dedicated to the prevention of abuse in the Jewish divorce process through education, advocacy and individual counseling. She presented at the Religious Law and the Civil Courts conference on May 29 at the Hadassah-Brandeis Institute's Project on Gender, Culture, Religion and the Law.