Next week, Marc DeGirolami and I will be participating in the biannual conference of the International Center for Law and Religion Studies, which will take place at the University of Virginia and William and Mary Law School. I’ll present a paper on the rise of the Nones and moderate a panel on religious symbols and public reason. Marc will present a paper on “Judging Theory” (co-authored with former CLR Forum Guest Kevin Walsh). Some other CLR Forum Guests will also be presenting papers, including Perry Dane, Michael Helfand, and Barak Richman. Details are here. If you’re in the area, stop by and say hello!
Thanks to Mark for the invitation back to the CLR Forum for a guest post. Yesterday, a couple of law blogs (see here and here) picked up a story in the Jewish Daily Forward about an important Connecticut state court decision that enforced what is often referred to as the “Jewish Prenup” (“In Victory for ‘Chained’ Wives, Court Upholds Orthodox Prenuptial Agreement“). I’ve written a bit about the decision previously, but wanted to explain a little bit more about what is at stake. [UPDATE: Here's a copy of the decision Light v. Light reprinted from Westlaw with permission of Thomson Reuters. If you wish to check the currency of this case by using KeyCite on Westlaw, then you may do so by visiting www.westlaw.com.”]
Under Jewish law, only a husband can initiate a Jewish divorce. Moreover, if a husband is “coerced” into granting a divorce, then the divorce is considered invalid. This combination of rules has caused some significant problems for Orthodox Jewish women seeking to end their marriage where their husband refuses to grant them a Jewish divorce document. In order to address this growing problem, a number of Jewish organizations – most prominently, the Beth Din of America – created a prenuptial agreement, which is now signed by a growing number of Orthodox Jewish couples. This agreement’s most salient feature is a provision where the husband agrees to provide his wife with financial support in the amount of $150 per day “so long as the two . . . remain married according to Jewish law.” The purpose of this provision is to walk a fine line between placing financial pressure on the husband to ensure he grants the divorce without placing so much pressure so as to render any subsequent divorce granted by the husband “coerced” (for a recent article exploring various considerations on this and related points, see here starting on page 12).
It was this support provision that was enforced by the Connecticut Superior Court in its recent decision in the case of Light v. Light. In so doing, the court considered the husband’s claim that enforcing the prenuptial agreement would violate the First Amendment by requiring the court to “consider religious doctrines and ceremonies.” However, the court rejected this argument, holding that the prenuptial agreement could be interpreted and enforced in accordance with “neutral principles of law”:
In the present case, a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.
It is important to note here that the prenuptial agreement does not require the husband to grant his wife a Jewish divorce. Indeed, courts have differed as to whether a contract in which a husband agrees to grant his wife a religious divorce is enforceable; the issue raised in such cases is whether or not civil enforcement of a contract that requires a husband to grant a religious divorce violates the religion clauses of the First Amendment (for contrasting views, see here and here). By contrast, the prenuptial agreement simply requires the husband to make support payments, thereby avoiding these potential First Amendment problems.
This decision – which is in my view both correctly decided and well reasoned – is likely to have significant impact on any future cases involving this increasingly popular prenuptial agreement. The “Jewish prenup” has done an impressive job of avoiding a variety of both constitutional objections and Jewish Law conundrums. And as a result, this prenuptial agreement is likely to go quite far in protecting Orthodox Jewish women by providing them with the financial leverage necessary to ensure that they receive their religious divorces from otherwise reluctant husbands.
Pepperdine law professor and CLR Forum contributor Mike Helfand has an interesting piece in today’s LA Times on litigation over a propsed eruv, or Jewish ritual boundary, in Westhampton Beach, NY. Here’s a link.
Thanks so much to both Mark Movsesian and Marc DeGirolami for inviting me here to guest blog this month. It’s been such a great opportunity to discuss some law & religion issues I’ve been thinking through, especially some of the back-and-forth on my Litigating Religion draft. Looking forward to having future law & religion conversations somewhere in the blogosphere!
I have the pleasure of being hosted this week at the DePaul College of Law by the Center for Jewish Law and Judaic Studies, which is holding a two-day Jewish Law Symposium. The format for the symposium has been fantastic. The first day was dedicated to CLE presentations on contemporary issues in Jewish law (I presented on practical issues that arise when trying to enforce rabbinical court judgments in U.S. courts). The second day will include works in progress by some fantastic Jewish Law scholars, including Chaim Saiman (Villanova), who is presenting his paper “Talmudic Analysis and Ethical Thought,” David Flatto (Penn State), who is presenting his paper “Justice Retold,” and Roberta Kwall (DePaul), who is presenting her paper “The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study,” with all papers receiving comments from Keith Sharfman (St. Johns). I’ve got to say the combination of both discussions of practical Jewish law issues and scholarly presentations of Jewish Law papers has been a great format. Many thanks to the Center and to its co-directors Roberta Kwall and Steven Resnicoff for putting together such a wonderful program.
The Legal Workshop – one of my favorite websites – posted the short essay version of my recent article “Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders.” I have to say that I really enjoyed the process of distilling the core points of the full version of the article (available here) into the shorter format, which is what I think makes The Legal Workshop such a useful venue for reading up on recent scholarship.
For all the attention given to the Supreme Court’s decision in Hosanna-Tabor v. EEOC, there’s been very little attention given to footnote 4 of the decision, which states the following:
A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits. . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear [the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.
Now for many, this footnote is just a civil procedure issue, which says little about the core law & religion debates addressed in Hosanna-Tabor. Indeed, Howard Wasserman has a thoughtful piece exploring how this footnote fits within a larger trend of Supreme Court decisions addressing the distinction between jurisdictional bars and merits-based defenses.
But Wasserman’s arguments notwithstanding, I can’t shake the feeling that this footnote says something very important about the relationship between church and state.
For some time, a number of authors have contended that constitutional doctrines such as the ministerial exception functioned as jurisdictional bars; that Continue reading
Richard Garnett just posted “Neutrality and the Good of Religious Freedom: An Appreciative Response to Professor Koppelman” on SSRN (check out his short post about the paper here as well). The piece was prepared for the recent conference we held at Pepperdine Law School, titled “The Competing Claims of Law & Religion: Who Should Influence Whom” and will be published in the upcoming symposium volume of the Pepperdine Law Review dedicated to papers from the conference. Here’s the abstract for Garnett’s paper:
This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.
While procrastinating about grading, I scrolled through today’s twitter feed (yes, you too can follow my not-particularly exciting twitter feed) and found a extremely thoughtful op-ed by Hillel Y. Levin (U. Georgia Law School) in Tablet Magazine titled “Stay Out of It.” In the piece, Levin criticizes recent statements from prominent Orthodox Jewish institutions opposing same-sex marriage. Much of Levin’s criticism tracks some of the larger debates over whether there is a role for religious argumentation in the public sphere – debates frequently associated with John Rawls’s seminal article “The Idea of Public Reason Revisited.”
But Levin also presses on another reason why Orthodox Jews should be particularly sympathetic to same-sex marriage, which emphasizes the minority status of both the Jewish and LGBT communities. Here’s an excerpt I found particularly noteworthy:
Unlike our Christian friends and neighbors, Jews grow up with our minority status deeply ingrained and without the instinctive expectation that our religious traditions and beliefs will naturally be reflected in the broader law and culture. As a minority within a minority, Orthodox Jews recognize that we reap the benefits of pluralism, tolerance, and accommodation. After all, if religious beliefs in this country were to orient secular law, we would find ourselves deeply disappointed and possibly threatened, just as we historically have in every other diaspora country.
In my last post, I began responding to Mark’s spot-on question: in order to ensure that parties have a forum to adjudicate disputes turning on religious doctrine or practice, why not simply have parties to an agreement incorporate religious arbitration provisions? So long as the parties specify a particular institution that will select arbitrators, such a tactic avoids the Establishment Clause problems that might arise from a court having to interpret a religious term in an agreement (such as the panel will be made up of “three Orthodox rabbis” or some sort of religious term used to describe required performance). If this is true, then why is it I also have been advocating for courts to play a more active role in resolving disputes that turn on religious doctrine or practice?
As I noted previously, I wholeheartedly concur with Mark’s point; this is one of the key reasons why I am a strong proponent of religious arbitration. Such tribunals can resolve disputes that courts, as a matter of current constitutional law, cannot. I’ve expressed this point, among others, in two of my recent articles, here and here.
But relying on religious arbitration is only part of the puzzle. If we take as a goal that we would like to ensure parties have a forum to resolve all disputes – including disputes that turn on religious doctrine or practice – then we’re going to need courts to play a significant role.
True, some disputes can be resolved by religious arbitration. When sophisticated parties draft agreements, they are likely to craft religious arbitration provisions that ensure disputes arising under the agreement are Continue reading
Posted in CLR Forum Guest, Commentary, Michael A. Helfand, Scholarship Roundup
Tagged Constitutional Law, Establishment Clause, First Amendment, Litigating Religion, Religion in America, Religious Arbitration, Religious Freedom, Religious Law