The collision of church and state: a primer to beth din arbitration and the New York secular courts.

• Author: Fried, Ginnine

When the United States of America was founded, the concept of the complete separation between Church and State was revolutionary and embedded deep within the foundation of this country. (1) In the twenty-first century, the American legal system embraced a different change: utilizing alternative dispute resolution methods such as arbitration, as an alternative to litigating in court. (2) This Comment discusses the dilemmas that arise when New York courts are asked to enforce arbitration decisions promulgated by a religious arbitration panel called a beth din, (3) which operates primarily under Jewish law.

For over four thousand years, Jews have been adjudicating disputes in their own court system in accordance with halacha (4) (Jewish law) and composed of batei din. (5) This practice endured, and the beth din largely mirrors the structure of an arbitration panel. One heralded benefit of arbitration is that an arbitrator can be selected based upon his specialized knowledge in a subject area, and can accordingly make an educated determination of the dispute. (6) In beth din proceedings, the specialized knowledge possessed by the arbitrator is knowledge of halacha. (7) Beth din decisions could become legally binding and enforceable by the secular courts if the parties were asked to sign an arbitration agreement enabling the beth din to decide their dispute. (8)

The interaction between the secular courts and beth din arbitration has created a distinct body of case law, where the secular courts have been called upon to either enforce or vacate decisions made pursuant to religious legal principles. These situations test the ability of the secular courts to walk the uncertain line separating Church and State when ruling on the enforceability of decisions made by a religious tribunal.

Part I of this Comment will examine the reasons why an independent Jewish religious court system is required and utilized despite the existence of a fair and equitable secular court system. This section will describe the Jewish legal principles involved, and how they impact both Jewish litigants and lawyers.

Part II will describe the mechanics of transforming a religious tribunal into a legally binding arbitration panel in New York State. This Comment will focus on courts in New York, the state with the largest orthodox Jewish population in the United States and, consequently, the state with the majority of existing case law. (9)

Part III will discuss the limited grounds upon which a beth din award may be vacated through statutory requirements and recent developments in the case law. This Comment will demonstrate the courts' reluctance to treat a beth din as a standard arbitration panel because of the possibility of encroaching on the Free Exercise Clause of the Constitution. (10) Lastly, this Comment will identify areas in which the courts have failed to vacate awards, seemingly deserving of vacature, due to a fundamental lack of understanding of Jewish mores and customs. This failure to vacate thereby demonstrates the need for further reform in this area of law.

1. HISTORICAL, HALACHIC, AND PRAGMATIC REASONS FOR THE BETH DI

   Beginning with a central authority of Jews established by the Roman conquerors to control the population after the fall of Judea in 70 C.E., most secular governments under which Jews lived throughout the Diaspora encouraged them to establish some form of self-government to further their own aims, such as tax collection. (11) Even when there was a general self-government policy for ethnic groups, particularly in Europe, Jews were unique in being allowed their own system of courts wherever they organized community life. (12)

   The Jewish court system initially developed due to the Talmudic ban on Jews voluntarily presenting their cases to courts governed by idolatrous peoples, courts of Akkum. (13) This prohibition was extended to all secular courts because the phrase "courts of Akkum" was interpreted to include the Muslim courts, which were not presided over by idolatrous peoples. (14)

   The Talmud in Gittin states:

   R. Tarfon used to say: In any place where you find gentile courts, even though their law is the same as the Israelite law, you must not resort to them since it says, 'These are the judgments which thou shalt set before them.' (Ex. 21:1) this is to say, 'before them' and not before gentiles. (15) Thus, while the secular courts of the United States government may be just and proper, interpretation of the Talmud suggests that an obligation to utilize a Jewish forum to adjudicate disputes still exists.

   Additional halachic reasons exist for the ban in contemporary Jewish law. A Jew who accuses another Jew in a secular court violates the supreme prohibition of chillul Hashem, which is the desecration of God's name. (16) The very mission of the Jewish people is to be or lagoyim, "a light unto the nations," and to serve as a model of those who are governed by God's divine law. (17) Bringing a dispute between Jews out of the Jewish community and into the eye of the general public, unnecessarily publicizes the wrongdoing. This results in a degradation of the law by exposing a Jew in violation of God's divine laws. After all, if an observant Jew acts wrongfully, sinfully, and shamefully despite being a practicing Jew, an onlooker might think that the laws of Judaism have little worth since following the laws does not seem to make one a better person. By extension, this brings shame upon the Jewish community at large.

   Secondly, choosing a secular court despite the availability of a Jewish court undermines the authority of Jewish law and the rabbinical courts, (18) and what follows is the inference that the beth din lacks either the capability or sophistication to adjudicate an issue according to halacha. (19) The great rabbinical authority Maimonedes captured this sentiment when he wrote that a Jew who voluntarily brings his case to secular court instead of utilizing the beth din has behaved "as if he had raised his hand against the Torah." (20) Today, modern Jewish authorities still hold that "[a] central principle of halacha is that disputes between Jews should be adjudicated in duly-constituted rabbinical courts." (21)

   There are some exceptions to the general rule banning Jews from the secular courts. It is important to note that the Talmudic ban only prohibits a Jew from being the first to resort to the secular courts, and does not prohibit a Jewish defendant from appearing in a secular court when summoned. (22) To the contrary, the overarching rule of dina de'malchutah dina would apply in that situation, meaning, "the law of the land is the law." (23) Therefore, Jews are halachicly obligated to obey a summons to appear in a secular court regardless of whether a Jew or a non-Jew initiated the suit, because that is the law of the governmental authority under which they reside. (24) There is also another exception when a defendant refuses to voluntarily submit to the jurisdiction of the beth din to decide a dispute, wherein the plaintiff must first apply to the beth din for a heter (exemption) from the ban, and thereafter may file his case in secular court with the permission of the beth din. (25)

   Incidentally, the ban on being the first to resort to a secular court also applies to a Jewish lawyer representing a Jewish plaintiff. (26) This arises due to the Biblical prohibition of lifnei iver lo titein machshol. (27) This law has been interpreted to mean that a Jew cannot aid in the commission of a violation of the law. (28) "[T]here are a number of conditions that allow exceptions to be made, the most important of which is the likelihood that the potential sinner will in fact be able to gain his object even without the help of the particular abettor." (29) The Biblical commandment of hochiach tochiach et amitecha (the duty to rebuke a Jew in the commission of a wrongdoing) arises, however. (30) Therefore, at the very least, a Jewish plaintiff's lawyer has the religious duty to advise a Jewish client to avail himself of the beth din prior to filing suit in the secular courts.

   The violation of the Talmudic ban on utilizing the secular courts merited cherem (excommunication), one of the most severe punishments the beth din could impose. (31) Unlike in Christianity, when a Jew is excommunicated, he does not lose his status as a Jew. (32) Rather, this decree calls for the expulsion of the individual from the religious and social life of the community. (33) This can include, withholding burial rites, prohibiting synagogue admittance, and preventing patronizing his livelihood or business. (34) One can imagine the harshness of this penalty where Jews lived separate from the rest of society. Enforcement of this ban, however, has relaxed through the centuries, first with the removal of the ban on a plaintiff upon consent of the other party, (35) then with inadequate enforcement of the ban overall. (36) This is in no small part due to the fact that a religious court that enforces its bans through social pressure alone is ineffective when the individual lives in an open society like the United States. (37) It is clear today that many Jews will readily file suit against another Jew without first seeking permission of a beit din, due to lax enforcement of the ban and the view that the laws of the United States are equitable and fair. (38) Despite this fact, however, the batei din are still frequently utilized because the Talmudic ban is only one reason why the courts exist today. (39)

   Aside from the halachic requirement for a beth din, there are additional reasons the Beth Din has been, and continues to be, an attractive forum to settle disputes between Jewish litigants. In some instances, there is simply a general distrust of the secular court system. (40) Historically, this feeling stems from a fear of anti-Semitism. (41) Today, there is a preference for a beth din when a dispute involves underlying Jewish...