From Tilsen v. Benson, decided last month by Connecticut Superior Court Judge Daniel J. Klau, but just posted on Westlaw:
The plaintiff seeks to enforce a Jewish marriage contract, known as a "Ketubah," contending that it is a valid prenuptial agreement. In relevant part, the Ketubah states that the parties "agreed to divorce (or, separate from) one another according to custom all the days of their life (i.e., as a continuing obligation) according to Torah law as in the manner of Jewish people." (Emphasis added.) The plaintiff argues that "Torah law" mandates a 50/50 division of property and relieves him of any obligation to pay alimony to his wife of nearly thirty years. The defendant disagrees and generally contests the validity of the Ketubah as a prenuptial agreement. This memorandum of decision addresses a narrow yet dispositive issue: Assuming, without deciding, that the Ketubah is otherwise a valid prenuptial agreement under Connecticut law, does the first amendment to the United States constitution nonetheless forbid the court to enforce the cited provision? For the following reasons, the court answers that question in the affirmative…. The parties married on December 3, 1989, in a ceremony conducted in accordance with Jewish tradition. Shortly before the marriage ceremony the parties signed their Ketubah—a traditional Jewish marriage contract written in Hebrew and Aramaic. Solely for the purposes of this ruling, the court accepts as accurate the plaintiff's English translation. As noted, the Ketubah states that the parties agreed to divorce "according to Torah law …" It further provides that the parties "agreed to accept upon themselves the Rabbinic Court [the Beit Din of the Rabbinical Assembly] to instruct them in the terms of Torah law … [and to] respond to the summons of the other to appear before above-referenced Rabbinic Court, or one mutually agreed upon, to the end that both of them can live in compliance with Torah law all the days of their lives." {[T]he plaintiff has not asked the court to order the parties to arbitrate their alimony and property division dispute before the Beit Din.} {The court does not decide whether the first amendment would bar the court from granting the types of relief that the plaintiff has not sought. But any request for a judicial order enforcing the Beit Din provision would raise serious first amendment concerns.} … [It is] apparent that a trial on the validity and interpretation of the Ketubah would involve competing expert rabbinical testimony. That is, the court would have to choose between competing interpretations of the Ketubah's requirement that the parties' divorce should accord with "Torah law." … "Courts have considered it constitutionally appropriate to resolve cases using neutral principles of law so long as they do not implicate or are not informed by religious doctrine or practice. Courts have properly resolved property disputes … so long as the disputes may be resolved by the application of ordinary principles of property law and without resort to ecclesiastical matters … Similarly, contractual matters, including employment disputes, may be resolved by the secular judicial system in other than religious contexts. Thus, ordinary business contracts may be litigated civilly, as may employment disputes with secular employees." … "[I]n undertaking … an examination [of religious documents], a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining" the parties' intentions…. [C]ourts cannot "take sides" in inherently religious disputes….
The court concludes that it cannot interpret the "Torah law" provision of the parties' Ketubah using strictly neutral, secular legal principles. To the contrary, granting the plaintiff the specific relief he seeks based on his preferred interpretation of the Ketubah and Jewish law would excessively entangle the court in a religious dispute and, therefore, would violate the first amendment…. This case appears to be one of first impression among published opinions, certainly in Connecticut, if not nationally. Distilled to its essence, the plaintiff's argument is that the "Torah law" provision of the parties' Ketubah is no different from any other choice of law clause in a civil contract. To educate the court about the parties' chosen law, the plaintiff submitted the affidavit of a rabbi, who would presumably testify at trial, describing his understanding of Torah law as it pertains to alimony and property division. The defendant also submitted the affidavit of a rabbi. However, the defendant's rabbinical expert disagrees with the plaintiff's rabbinical expert. [The court doesn't discuss whether one of the rabbis disagreed even with himself. -EV] It is clear, then, that enforcement of the "Torah law" provision in the Ketubah would require the court to choose between competing interpretations of Jewish law. But resolving such a dispute is precisely what the neutral principles approach forbids a court to do. The first amendment does not permit courts to resolve disputes over the meaning and interpretation of the Torah—or the Koran, the New Testament or any other religious text. This is where the plaintiff's analogy to traditional choice of law analysis breaks down. Construing the civil law of a foreign jurisdiction (other than a pure theocracy) does not require a court to choose between competing interpretations of religious law. In other words, traditional choice of law provisions generally do not have first amendment implications. One … commentator on first amendment issues offers the following hypothetical, which helps clarify the limits of a court's power to interpret documents with religious implications or motivations. "Religiously motivated contracts (and wills and trusts) should be interpreted the same as secularly motivated documents, so long as they can be interpreted using neutral principles and without evaluating religious doctrine. That makes sense as a matter of contract law and wills and trusts law, and required by the Free Exercise Clause principle that people ought not be discriminated against based on the religious nature of their practices. See, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah (1993)." "Thus, to take the simplest example, imagine a man dies and leaves a will that provides that 2/3 of his property will go to his son and 1/3 to his daughter, and it's clear that this stems from his understanding of Islamic law, under which sons should get twice the share of daughters. Such a will, it seems to me, must be enforced, even if we think it stems from a sexist religious belief system. People are entitled to be sexist—and religiously motivated—in deciding whom to leave their property to." "On the other hand, if a man leaves a will that provides for division 'according to the principles of Shari'a,' courts can't enforce that, because that requires courts to interpret what Islamic religious law actually calls for, something that they can't do." Eugene Volokh, "Court Refuses to Enforce Islamic Premarital Agreement That Promised Wife $677,000 in the Event of Divorce," last modified September 10, 2012), available at http://volokh.com/2012/09/10/ court-refuses-to-enforce-islamic-premarital-agreement-that-promised-wife-677000-in-the-event-of-divorce. The court shares the view of first amendment law expressed above. The "Torah law" provision in the parties' Ketubah is functionally indistinguishable from the "Shari' a law" provision in the hypothetical will. Interpreting what Hebrew, Islamic, Christian, Hindu, etc. law or religious doctrine requires in terms of alimony and property division is precisely the sort of task that would excessively entangle courts in inherently religious matters. The specter of a civil court being forced to decide which religious experts' proffered interpretation is more "credible" is also troubling. {The plaintiff cites In re Marriage of Goldman (Ill. Ct. App. 1990) as precedent for civil courts to interpret the "Torah law" provision in the parties' Ketubah. The trial court in that case interpreted a Ketubah provision very similar to the one at issue here. Based on "uncontroverted expert testimony," the trial court accepted the wife's argument that the general reference to "Torah law" required the husband to give her a Get. The court ordered specific performance of that obligation. The Illinois [court] affirmed and rejected the husband's argument that the first amendment barred the trial court from ordering him to give his wife a Get. The court agrees with the plaintiff that in re Marriage of Goldman is relevant precedent, but it is not binding on a Connecticut Superior Court. It is also distinguishable because it involved uncontroverted expert testimony. The court declines the plaintiff's invitation to follow that case. More persuasive is Victor v. Victor (Ariz. Ct. App. 1993), in which the Arizona Appellate Court held that a comparable provision in a Ketubah was too vague to be enforceable. "If this court were to rule on whether the ketubah, given its indefinite language, includes an unwritten mandate that a husband under these circumstances is required to grant his wife a get, we would be overstepping our authority and assuming the role of a religious court. This we decline to do."} Finally, this court … is unpersuaded that the distinction under Jewish law between laws governing the relationship between man and God and laws governing relationships between men avoids the first amendment problem in this case. The court acknowledges the distinction within Jewish law. Nevertheless, both categories of laws are rooted in the Torah and other textual sources of Jewish law. Even disputes over the correct interpretation of Jewish civil laws are disputes over the meaning and requirements of Jewish law. From the perspective of an American civil court—state or federal—such disputes are inherently religious…. The neutral principles approach requires civil courts to refrain from deciding disputes involving matters of religious faith, law, doctrine, practice and the "true" meaning of religious texts. Here, enforcement of the "Torah law" provision of the parties' Ketubah would require the court to choose between competing rabbinical interpretations of Jewish law. This the court cannot do without violating the first amendment….
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