“The Case Should Proceed Under Ecclesiastical Islamic Law” / Jews, Ketubahs, and Gets

The St. Petersburg Times reports that the Florida Court of Appeals has affirmed, without opinion, the trial judge’s order in this case (thanks to Prof. Howard Friedman [Religion Clause] and Victor Steinbok for the pointer); so I thought I’d repost the item I wrote about the trial court decision in March:

There’s been much talk about the trial court decision in Mansour v. Islamic Education Center, a Florida trial court case. I think the court erred, for reasons I discuss in item 3 below, but I think the matter is more complex than some suggest. Here’s an excerpt from the court decision:

This action was filed in 2008 to resolve issues relating to the corporate governance of the Islamic Education Center of Tampa, Inc. (“IEC”). The IEC is a learning center and community center for Muslims in the Tampa Bay area. The dispute began in the early 2000s, but was exacerbated by disagreement concerning control of the cash proceeds from an eminent domain settlement [and a purported binding arbitration of the matter –EV]….

From the outset of learning of the purported arbitration award, the court’s concern has been whether there were ecclesiastical principles for dispute resolution involved that would compel the court to adopt the arbitration decision without considering state law. Decisional case law both in Florida and the United States Supreme Court tells us that ecclesiastical law controls certain relations between members of a religious organization, whether a church, synagogue, temple or mosque….

The court has concluded that as to the question of enforceability of the arbitrator’s award the case should proceed under ecclesiastical Islamic law. Based upon the testimony before the court at this time, under ecclesiastical law, pursuant to the Qur’an, Islamic brothers should attempt to resolve a dispute among themselves. If Islamic brothers are unable to do so, they can agree to present the dispute to the greater community of Islamic brothers within the mosque or the Muslim community for resolution. If that is not done or does not result in a resolution of the dispute, the dispute is to be presented to an Islamic judge for determination, and that is or can be an A’lim.

The court will require further testimony to determine whether the Islamic dispute resolution procedures have been followed in this matter. When the hearing was recessed to reconvene at a later date the defense was presenting its case. Counsel advised that he anticipated calling between five and seven witnesses.

1. To begin with, I think it’s entirely proper to have binding arbitration, by religious authorities applying religious law, of disputes within a religious organizations related to the governance or property of the organization. Members of religious organizations, whether Presbyterians, Anglicans, Catholics, Muslims, Jews, or anyone else — naturally have disputes about how the organization is to function. Those disputes often turn on their understanding of what their religion requires. American courts are constitutionally barred from resolve such religious disputes. They may resolve disputes involving religion-neutral principles of law, for instance the interpretation of secular terms of contracts, trusts, bylaws, and the like. But often the dispute is about the religious terms of the provisions, and considering religious law is the only way of resolve it with an eye towards the true understanding of the parties to the original documents.

This is why, in cases involving hierarchical churches, the Supreme Court has held that secular courts must defer to the decisions of “the highest ecclesiastical tribunals of the hierarchical church.” When the religious organization is not hierarchically organized, letting the parties to the dispute select an arbitrator or arbitrators who would resolve disputes using religious law (whether the selection is done at the time of the dispute or before), is functionally similar to deferring to a hierarchical church’s adjudicatory body. Let the imam/rabbi/minister/etc. resolve the question, as per the parties’ agreement to arbitrate. Then enforce the result of the arbitration. That’s just the neutral application of neutral principles of contract law, applied to the contract to arbitrate.

2. Nor does the fact that this involves Islamic law, as opposed to Jewish law or Christian law as understood by particular Christian arbitrators, affect the analysis. Islamic law has provisions that are contrary to American public policy, as does Leviticus — part of the body of Jewish and Christian law — and for that matter English law, French law, Canadian law, and so on. No American court would enforce an arbitral decision ordering thieves to have their hands cut off or adulterers to be put to death, just American courts wouldn’t apply English libel law or Canadian “hate speech” law. But none of this should prevent American courts from enforcing arbitral decisions rendered under foreign or religious law, where the decisions do not involve any court action that would be contrary to American public policy, but simply resolve commercial disputes or disputes related to the governance of a religious body.

3. But despite this, I think the court erred, not in being open to enforcing a religious arbitration decision, but in proposing to use “ecclesiastical Islamic law” to evaluate the validity of the “dispute resolution procedures” that were used. If there is a contract that provides, in secular terms, for certain procedures — that this particular person is to be the arbitrator, or that the proceeding is to happen at a particular time in a particular place — or for certain preconditions (e.g., as one side says, that “Dr. Bahraini had to agree to Mr. Shabiri serving as the arbitrator and second, the other side in the dispute had to dismiss their lawsuit”), then a court may decide if those terms can be met. But a secular court may not resolve terms that can only be interpreted by determining what “Islamic law” calls for, since that would involve taking sides as to the proper meaning of Islamic law.

I discuss this in more detail in this post, but the short summary is that I think this rule is called for by the same constitutional decisions I mentioned in item 1 above. Secular courts may not be arbiters of religious law, either as to the substance of a religious dispute, or as to whether the proper religious procedures were followed in a private arbitration of the dispute. And while this might indeed be inconvenient for parties that do want their disputes resolved through religious law, the First Amendment requires that any religious controversies be resolved outside the secular court system — for instance, through contractually provided-for arbitration — and any controversies about the resolution of those controversies be resolved using neutral principles of law that don’t require religious decisionmaking (e.g., a contract about the arbitration procedures that is written entirely in secular terms).

4. Now let me shift from Islamic law to Jewish law, and from religious bodies to divorces. As it happens, a week before the Florida court decision, an Illinois appellate court handed down a decision in Schneider v. Schneider, which suffers from the same problem. Schneider in turn relied on In re Marriage of Goldman (Ill. App. Ct. 1990), and both cases dealt with a common problem among religious Jews: A couple gets divorced in civil court, and the husband refuses to give the wife a religious divorce (called a get). This means that, under Jewish law, the wife can’t get remarried; and it also means — if the woman wants to remain a part of a Jewish religious community that cares about such matters — that the husband can use his power to give a get as a bargaining chip in divorce negotiations.

Because of a concern about husbands’ not giving gets, some states have passed special laws on the subject (which I think are likely unconstitutional, for reasons I discuss here). But the Illinois courts had a different approach to the matter.

Religious Jewish wedding include a contract called a ketubah, which has, as one of its normal provisions, “Be thou my wife according to the law of Moses and Israel.” The courts in Goldman and Schneider concluded that the ketubah is not just a religious symbol, but is actually a binding contract, that the contract called for the application of Orthodox Jewish law, that Orthodox Jewish law required the husband to give a get, and that secular courts could therefore enforce this contract:

[T]he trial court properly found that the parties intended the ketubah to be a contract that the status and validity of their marriage would be governed by Orthodox Jewish law. The uncontroverted expert testimony presented at trial established that Orthodox Jewish law requires the husband to obtain and deliver to his wife an Orthodox get upon dissolution of the marriage. Rabbi Schwartz testified that although the giving of a get is ordinarily a voluntary act on the part of the husband, a certain degree of compulsion is acceptable under the circumstances presented here, where Kenneth abandoned Annette and refused to cohabit with her and support her according to the terms of the marriage contract. Kenneth Goldman presented no expert testimony to the contrary. Before ordering specific performance of a contract, a court must find that its terms are sufficiently certain and definite that the court can require the specific thing contracted for to be done. We believe that the court’s order of specific performance was justified by the evidence before it.

Naturally, Schneider and Goldman differ in some respects from Mansour, the Islamic arbitration case, but the core point is similar: A court concludes that, based on the terms of a contract and the perceived intention of the parties, the parties wanted the contract to be enforced using religious law. It then decides, based on expert evidence, what the religious law — “ecclesiastical Islamic law” or “Orthodox Jewish law” — requires, and then enforces this understanding of the parties’ agreement (again, unless it is somehow contrary to some specific public policy of the state).

Now for the reasons I mentioned in item 3, I don’t think this is constitutionally permissible. As they say, Three Jews, Four Opinions, and I suspect the same is true to a large extent about Muslims, Christians, and pretty much everyone else. Different Jews have different views about what Orthodox Jewish law “really” calls for, and different Muslims have different views about “ecclesiastical Islamic law.” A court may not take sides in those religious disputes.

To be sure, a court can say that it’s not trying to decide what the religious law “really” requires (though note that Mansour and Goldman both did speak in terms of applying the religious law, presumably as it “really” is), but just what the parties thought it required, so that the court is simply enforcing the parties’ agreement. But in practice the parties will often not have thought about the particular details of the religious law provision, and how it would play out with regard to some future dispute. The court’s decision would thus in practice be an attempt to determine the true meaning of the religious law. And that, I think, is something that secular courts may not do under the Supreme Court’s First Amendment jurisprudence.

But in any case, I mention Schneider and Goldman chiefly to highlight what I’ve often said before — many of the disputes about accommodations of Islamic religious practice, about enforcing of Islamic arbitrations, and so on are just special cases of much broader disputes that the American legal system has dealt with for over two centuries. There’s nothing specially shocking or even highly novel about them. They’re not some special new monkey wrench that Muslims are throwing into our legal system; Christians, Jews, and others have routinely raised such issues before, and continue to do so today.

Sometimes the Muslim claimants should prevail (again, whether it comes to religious exemptions from generally applicable laws or employer practices, or to enforcement of religious arbitrations). Sometimes they should lose. Sometimes they should prevail, but do lose, and sometimes they should lose, but nonetheless prevail. But that is no different from what we’ve been seeing with regard to other religious claimants for many years.