In the midst of marital difficulties, a woman approached two prominent Five Towns rabbanim for guidance, and, in the course of their conversations, revealed that she was not shomeres mitzvos.
But then the rabbis did something shocking, at least to a secular psychologist: They relayed that incriminating information to the woman’s husband, with whom she was battling for custody of their children.
The woman took the rabbis to court, claiming a breach of confidentiality. The defendants, in turn, hired Frank Snitow, an Orthodox attorney who has handled numerous high-profile cases in the Jewish community. Snitow argued that although confidential communications to one’s clergyman were not admissible as evidence in court, a clergyman’s revelation of such conversations was not a basis for damages in a civil suit. Professionals like doctors and lawyers, he contended, are governed by state law, which requires them to be licensed and can sanction them for professional misconduct. Or, for that matter, for revealing confidences.
Rabbis, on the other hand, do not derive their right to practice from the state, but from their religion, and thus are not subject to state regulation of their practices. Separately, Mr. Snitow argued that Jewish law required his clients to reveal the wife’s failure to observe religious law to her husband, and thus, invoking a confidentiality requirement would run afoul of the United States Constitution’s guarantee of freedom of religious practice. The case eventually arrived at the Court of Appeals in Albany, where the state’s highest judges ruled 7-0 in the rabbis’ favor.
Mr. Snitow notes that “Judaism’s rules of confidentiality are, at once, more stringent and more lenient than those of secular law. Thus, the halachah prohibits anyone, not just members of certain professions, from revealing things they’ve been told in confidence. But by the same token, there are circumstances in which one is positively required to reveal private information, such as to prevent a transgression of Jewish law.”
As Orthodox Jews have become ever more active in the broader American society, the number of court cases in which Jewish law plays a role have mushroomed. Only recently, the public has been treated to headlines trumpeting stories like “Chassidic New York City policeman sues to keep his beard,” “City sues Williamsburg shopkeepers over modesty signs” and “Vigilante tactics used to coerce recalcitrant husbands to divorce their wives.” It sometimes seems as if every other month, yet another high-profile legal episode unfolds in which various aspects of halachah, including some that sound exotic or incomprehensible to the secular ear, take center stage.
In reality, however, halachah and secular law have been interfacing in American courts for as long as there has been a judicial system. At times, in fact, court battles involving halachah have established new precedents in American law itself.
“In this case halachah and secular law differed,” Mr. Snitow adds. “However, these two legal systems often converge. At bottom, with increasingly sophisticated matters implicating civil law and halachah, raised in both secular courts and beis din, it is essential that litigants and their legal representatives be prepared to recognize and utilize both systems of jurisprudence.”
Founded in1937 as Jersey Homesteads, the town was intended as a New Deal experiment in cooperative management, with a farm and garment factory constituting the entire local economy; it was renamed Roosevelt in 1945 to memorialize the just-deceased American president and architect of the New Deal. The town's initial residents were all Jews, mostly Eastern European immigrants: the founding town charter, in fact, was written in Yiddish and town meetings, too, were conducted in mamma lashen. From its founding onward, the town's sole house of worship was an Orthodox synagogue, named, naturally enough, Anshei Roosevelt.
Over the decades, however,as the Jewish population dwindled, the shul fell on hard times. In an effort to reverse its declining fortunes, its members welcomed into their midst Rabbi Yisroel Meir Eisenberg, an alumnus of Riverdale's Telshe Yeshivah, and his newly established yeshivah high school, Meon HaTorah. The understanding was that in exchange for hosting the yeshivah, the school's rabbis would lead regular services and perform other pastoral duties.
Roosevelt had been listed by New Jersey Monthly magazine as one of the Garden State's "Best Places to Live,"but right from the start, the yeshivah felt unwelcome. Although the town's zoning officer had initially ruled the yeshivah to be in compliance with the law, neighbors successfully petitioned the local planning and zoning board to declare the yeshivah in violation of the local zoning ordinance. Tensions ran high and acrimony poisoned the small town's normally placid atmosphere. Roosevelt mayor Neil Marko, who had enthusiastically supported the yeshivah's arrival, was ousted in a recall election in 2007 by a vote of 262-38. At one point, the picketing of the shul and yeshivah reached such levels that the state police had to be summoned to the scene to maintain the peace.
Facing what it regarded as ugly, un-American bigotry, the yeshiva decided to fight. It turned to Orthodox Jewish attorney Bruce Shoulson, a partner at the prominent New Jersey firm of Lowenstein Sandler, who filed suits on various grounds in both the federal and state courts. The central issue in the state·court case was whether housing a yeshivah on the premises was an expansion of the property's preexisting use as a synagogue.
To bolster his client's position, Shoulson says, he produced testimony by Rabbi Zevulun Charlop, a Bronx rav and longtime dean of the Rabbi Isaac Elchanan Theological Seminary of Yeshiva University, as an expert in Jewish law. The two had collaborated previously on a 1994 case in which the rabbi's testimony helped Shoulson defend the right of a Sephardic kollel in Deal, New Jersey, to establish itself in a zone that permitted houses of worship. The kollel, too, had contended that it was a synagogue.
As in the Deal case, Rabbi Charlop offered his expert opinion that the yeshivah's opponents were wrong to claim that worship and religious instruction were two separate uses, and thus that the opening of the yeshivah was a change in the property's use. He testified that a yeshivah is a place where people gather to study the Torah, which is, as he explained to the judge, "the highest form of worship." Rabbi Charlop added that those who study in the yeshivah are also obliged to observe "all the traditions and customs of the synagogue," including praying three times daily.
Therefore, Rabbi Chariop explained, a yeshivah was in fact a house of worship. And while a synagogue "may not necessarily be a yeshivah, a yeshivah is always a synagogue." But unlike in the Deal case, this time it was Roosevelt's antagonistic residents who prevailed. The court, however, came to the conclusion that "a synagogue is not necessarily a yeshivah because it is not a house of study" and therefore ''with the addition of the yeshivah, the synagogue also had become 'a house of study.' "
And so it was that after a half-decade of bitterly fought litigation, Yeshiva Meon HaTorah packed up and relocated to the more hospitable environs of Monsey;. New York, where it has thrived.
Kashrus and the First Amendment But Mr. Shoulson is quick to contrast the way the court pondered questions of Jewish law and practice in the Roosevelt case with another well-known litigation in which he was involved, when New Jersey's highest court declined to get involved in weighing issues of Jewish law. Until about 25 years ago, New Jersey's kosher enforcement law provided that a vendor could only hold himself out as selling kosher food if it was prepared "in strict compliance with the laws and customs of the Orthodox Jewish religion."
Ran-Dav County Kosher, a butcher shop in Linden, New Jersey, was found to be in violation of the law for selling meats as "kosher'' that didn't meet Orthodox Jewish standards, not- withstanding that a non-Orthodox clergyman had provided his seal of approval. The butcher challenged the very validity of the kosher law itself, arguing that it entangled the secular courts in the interpretation of Jewish law, thus running afoul of the separation of religion and state mandated by the First Amendment to the United States Constitution.
After a lower court upheld the law, the butch- er appealed to the state's highest court, which struck the law down because it created an im- permissible entanglement of secular courts with religion by requiring them to consider and decide upon matter's of Jewish law. (The New Jersey legislature later created a new kosher enforcement law;.which provides that the vendor is simply required to explain his reasons for claiming his products are kosher. It is then up to the buyer to decide whether to make the purchase based on the available evidence.)
"What's interesting,"says Mr. Shoulson, "is that in arguing to uphold the kosher statute, I represented not only the Orthodox rabbinical organizations, but the Reform, Conservative, and Reconstructionist clerical groups as well. They all accepted the notion that when a food Product is described as kosher, the consumer public understands that to mean that it is kosher by Orthodox standards. But the biggest lesson to emerge from this case is that courts are very wary of involving themselves in matters of halachah, which they regard as the very kind of entanglement between church and state that the Constitution of the United States forbids."
Courting Trouble in Beis Din
One very fertile source of conflict between secular and Jewish law is the beis din, which on the one hand is recognized by American law as a bona fide arbitration panel whose rulings are bind ng, yet on the other is governed by rules that can be radically different from those that apply in secular courts. Los Angeles civil trial attorney Baruch C. Cohen learned about those differences the hard way. Back in 2009, Cohen represented the widow of a former congregational rabbi who sought to reclaim four sifrei Torah from her husband's now-defunct shul th'at were on loan to another shul. Now she wanted them back.
The dispute between the widow and the rabbi of the shul housing the sifrei Torah went to arbitration before a local beis din, which ruled in her favor. But the defendant rabbi refused to comply with the beis din's decision, and when the widow sought to have its ruling confirmed and enforced in Los Angeles Superior Court, the judge surprised her by vacating the beis din's award of the sifrei Torah entirely. According to attorney Cohen, the court found that one of the three dayanim, a highly respected local posek, was unfit to sit on the beis din panel in this ·'case. The reason for his disqualification? A response he had previously given to a newspaper reporter's hypothetical question about a situation similar to the one in this case: "Lending a Torah to a synagogue is a common way Jews fulfill a mitzvah.....It is on long-term loan to their synagogue, but he still owns it" This statement, the court held, should have been disclosed to the defendant prior to the beis din session in keeping with the rule requiring arbitrators to disclose potential conflicts of interest.
The upshot, says Mr. Cohen, based on over 75 cases he has handled before California batei din is that in order to make sure that a beis din's arbitration award can be converted into an enforceable court judgment, the shtar berurin as the beis din's written ruling is known must comply in all respects with secular law. "This no simple matter, given that there are numerous aspects of American law that simply are nonexistent in halachah. The Torah, for example, does not know of the concept of a statute of limitations, which dictates that after a set number of years have elapsed following a transaction, a suit can no longer be brought. The same is true of various rules of evidence, such as hearsay and irrelevance. And, as we found out in this case, the duty to disclose any potential conflicts are very different in Jewish and secular law."
He says the beis din of the Rabbinical Council of California now has a legal counsel review each one of its shtarei berurin before it is issued, and he has bee working to have this practice instituted by other batei din as well.
Respect for the Law: All in all, Mr. Cohen observes that in his experience, secular courts maintain great respect for halachah when it is presented clearly and unapologetically. He ·once represented a frum debtor in a Chapter 13 bankruptcy proceeding, which requires submission of a personal budget demonstrating that all listed expenses are necessary. His client listed his child's yeshivah tuition as a necessary expense, which was contested by the bankruptcy trustee.
Mr. Cohen entered into evidence excerpts from Rabbi Dovid Weinberger's book Shema Beni on halachic aspects of child rearing stating that if a father balks at paying tuition, a beis din can liquidate his assets to do so. "Then," he recalls, "I put the debtor on the witness stand to testify that because paying his son's schar limud was so important to him, he hadn't bought himself new clothes in three years, and hadn't taken a vacation in even longer than that. The judge was very impressed by that, and fo11nd in favor of the father based on his sincerely held religious beliefs."
In another case, Cohen represented a large Jewish charitable organization that had received an enormous charitable donation, only to learn that the donor was i:h bankruptcy and the money he'd contributed had come from a Ponzi scheme he was running.
The Chapter 7 trustee, acting on behalf of investors whom this generous donor had bilked, sued for the monies he had donated to be returned to them, and at trial, the female Jewish judge, a past president of her Reform temple, asked the rav associated with the charity about the halachic obligations of a charity to return donations that were found to have been stolen funds. He gave a clear exposition of the relevant halachos, and she soaked it up. "The kavod the judge had for the rav and for halachah was very evident. It was as if the heavens opened up and a beacon of light shone upon him."