Opinion
NNHFA186084187S
09-11-2019
Jon-Jay Tilsen v. Miriam E. Benson
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Klau, Daniel J., J.
MEMORANDUM OF DECISION
Daniel J. Klau, Judge
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. See Plaintiff’s Memorandum of Law in Support of Motion for Enforcement of the Parties’ Prenuptial Agreement (dated April 30, 2019), p. 16. 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.
This decision only addresses the enforceability of the Ketubah under federal constitutional law, not under the Connecticut constitution.
I. FACTUAL AND PROCEDURAL BACKGROUND
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."
The plaintiff’s Second Amended Complaint requests enforcement of the Ketubah as a premarital agreement. See Second Amended Complaint (dated February 28, 2019), Claims for Relief, ¶D. By way of answer and reply, the defendant acknowledged the existence of the Ketubah, but denied that it was valid premarital agreement. See Defendant’s Answer and Reply to Plaintiff’s Second Amended Complaint, ¶¶2-3.
On April 30, 2019, the plaintiff filed a motion (#116.00) to enforce the Ketubah. He also moved to bifurcate the hearing on the enforceability of the Ketubah from the dissolution trial. The defendant objected to bifurcation, and the parties appeared before the court on May 30, 2019, for oral argument on that issue.
During the argument, it became 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." The court invited the parties to submit briefs addressing the first amendment implications, if any, of having the court make that choice. The court heard oral argument addressing the first amendment issues on July 19, 2019.
II. DISCUSSION
A.
Origins of the "Neutral Principles of Law" Approach
The first amendment to the United States constitution provides, in pertinent part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." U.S. Const., amend. I. These clauses are referred to as the Establishment and Free Exercise clauses. They are applicable to the states through the fourteenth amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). In general terms, the Establishment Clause bars the federal and state governments from placing their official support behind a religion, while the Free Exercise Clause bars them from interfering with the religious practices of their citizens. Significantly, the first amendment applies not only to legislative and executive acts, but also to the judicial resolution of private disputes. Cf. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (judicial enforcement of private agreement constitutes state action subject to constitutional scrutiny).
The first amendment bars the federal and state governments, courts included, from actions that "foster an excessive government entanglement with religion." Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). See also Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 671, 994 A.2d 212 (2010) ("[t]he first amendment has been interpreted broadly to severely [circumscribe] the role that civil courts may play in resolving ... disputes concerning issues of religious doctrine and practice"). However, the constitutional proscription against judicial entanglement with religion does not prohibit courts from adjudicating a dispute just because it happens to involve a religious institution, party or document. The challenge is to determine whether adjudication of a particular dispute would, in fact, excessively entangle a court with religious matters, in violation of the first amendment.
In a series of cases dating back to the 1870s, the United States Supreme Court addressed this challenge in cases involving disputes over church property. See Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 696, 49 L.Ed.2d 151 (1976); Maryland & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970); Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed. 658 (1969); Watson v. Jones, 13 Wall. 679 (1872). In Jones v. Wolf, supra, the Supreme Court adopted the "neutral principles of law" approach ("neutral-principles approach"). Describing the neutral principles approach is fairly straightforward; properly applying it in the context of particular cases is not.
"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." (Citations omitted.) Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 674. "Under Jones v. Wolf in deciding secular questions arising out of concepts of property and trust law, civil courts may not only examine the deeds of conveyance or of trust but may also scrutinize certain religious documents, such as a church constitution, for language of trust in favor of the general church." New York Annual Conference of the United Methodist Church et al. v. Everett Fisher et al., 182 Conn. 272, 282-83, 438 A.2d 62 (1980), abrogated on other grounds by Episcopal Church in Diocese of Connecticut v. Gauss, 302 Conn. 408, 28 A.3d 302 (2011). However, "[i]n undertaking such 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. (Emphasis added). Jones v. Wolf, supra, 443 U.S. 604.
In short, the first amendment permits court to resolve disputes involving religious institutions, parties or documents if, but only if, the court can do so by applying traditional secular legal principles and without delving into and deciding controverted matters of religious law, doctrine, practice or faith. If the first amendment means anything, it means that courts cannot "take sides" in inherently religious disputes.
B
Application of the Neutral Principles Approach to Religions Marriage Contracts
Although the neutral principles approach developed out of church property disputes, courts have applied it in other contexts, including employment, torts and business contract disputes. See Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 674; Decorso v. Watchtower Bible and Tract Society of New York, Inc. et al., 78 Conn.App. 865, 877, 829 A.2d 38 (2003) ("[u]nder ‘excessive entanglement’ analysis, civil tort claims requiring courts to review and to interpret religious doctrine and practices are barred by the first amendment").
The neutral principles approach also extends to the type of private agreement at issue in this case, to wit, religious marriage agreements. The cases involving such contracts fall loosely into three general categories: (1) Islamic marriage contracts obligating the husband to pay a specific sum of money to a spouse (the "mahr" cases); (2) Jewish marriage contracts requiring a husband to grant a wife a religious divorce (the "Get" cases); and (3) Jewish marriage contracts requiring the parties to appear before and submit to a religious tribunal (the "Beit Din" cases). Although the present case does not fit neatly into any of these categories, the case law from those categories informs the court’s constitutional analysis. A brief overview of those cases is therefore appropriate.
The Mahr Cases
A "mahr" is a provision in Islamic marriage contracts which obligates the husband to pay a sum certain of money to the wife during the marriage. Wives have sought enforcement of mahr agreements in the civil divorce context when a husband has refused to pay the mahr. For example, in Odatalla v. Odatalla, 355 N.J.Super. 305, 810 A.2d 93 (2003), a New Jersey Superior Court considered whether judicial enforcement of a mahr agreement would violate the first amendment. The mahr agreement required the husband to pay the wife "one golden pound coin" when they married and a "postponed ten thousand U.S. dollars" thereafter. Id., 308. The husband made the initial payment, but not the second. Even though the mahr agreement was religious in nature, the court determined that it could specifically enforce the agreement using neutral principles of contract law. "[T]he Mahr Agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a "free exercise" of religious beliefs, no matter how diverse they may be. If this Court can apply "neutral principles of law" to the enforcement of a Mahr Agreement, though religious in appearance, then the Mahr Agreement survives any constitutional implications." Id., 311. The court determined that it could interpret and enforce the mahr agreement using the neutral principles approach. Therefore, enforcing the agreement did not violate the first amendment.
Other courts have reached the same conclusion. E.g., Seifeddine v. Jaber, No. 343411, 2019 WL 1645262 (Mich.Ct.App. Apr. 16, 2019) (following Odatalla and enforcing mahr agreement); S.B. v. W.A., 38 Misc.3d 780, 803, 959 N.Y.S.2d 802, 821 (Sup.Ct. 2012), aff’d sub nom. Badawi v. Wael Mounir Alesawy, 135 A.D.3d 792, 24 N.Y.S.3d 683 (N.Y.App.Div. 2016); Aziz v. Aziz, 127 Misc.2d 1013, 488 N.Y.S.2d 123 (Sup.Ct. 1985). However, some courts have refused to enforce mahr agreements because of first amendment concerns. E.g., Soleimani v. Soleimani, No. 11CV4668, 2012 WL 3729939 (Kan.Dist.Ct. Aug. 28, 2012); cf. Zawahiri v. Alwattar, 2008 Ohio 3473, ¶8, 2008 WL 2698679, at *2 (Ohio App. 10 Dist., 2008) (trial court refused to enforce the mahr provision because Establishment Clause of Ohio [c]onstitution prohibited court-ordered enforcement of contractual provision requiring performance of religious act, i.e., payment of mahr).
The Get Cases
Deuteronomy 24:1 states: "When a man taketh a wife, and marrieth her, then it cometh to pass, if she find no favour in his eyes, because he hath found some unseemly thing in her, that he writeth her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house." (Emphasis added.)
The "bill of divorcement" to which this verse (and verses 24:2-4) refer is known as a "Get." The husband must present a Get to his wife, in the presence of witnesses, to effectuate a divorce under Jewish law. Notwithstanding a valid civil divorce, a wife who has not been given a Get is considered an "agunah"- a "tied" woman- and may not remarry under Jewish law. Any subsequent children are considered to be "mamzerim," i.e., illegitimate, and may not marry other Jews. See Aflalo v. Aflalo, 295 N.J.Super. 527, 535, 685 A.2d 523 (1996).
Not surprisingly, a husband’s refusal to give his wife a Get has led to a number of civil cases in which the wife sought to specifically enforce a provision in a Ketubah requiring the husband to give her a Get, or which imposed certain monetary penalties if he refused. For example, in Light v. Light, 55 Conn.L.Rptr. 145, 148-49 (Conn.Super. Dec. 6, 2012) , the Ketubah stated that the husband agreed to pay his wife $100 per day from the date they separated until the husband granted the wife a Get. After surveying the law, the court (Gould, J.) concluded that "[d]etermining 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." Id. Thus, enforcing the Get did not run afoul of the first amendment prohibition against judicial entanglement with religious doctrine. But see Masri v. Masri, 55 Misc.3d 487, 499, 50 N.Y.S.3d 801 (2017) ("increasing the amount or the duration of defendant’s post-divorce spousal maintenance obligation ... by reason of his refusal to give plaintiff a ... "Get" would violate the [f]irst and [f]ourteenth [a]mendments to the United States [c]onstitution").
Cases involving requests for a judicial order compelling a husband to give his wife a Get raise even thornier first amendment issues. Does such an order constitute a judicial injunction to perform a religious act? Some courts say it is not. E.g., In re Marriage of Goldman, 196 Ill.App.3d 785, 554 N.E.2d 1016 (1990) (specific enforcement of Get requirement does not violate first amendment); Scholl v. Scholl, 621 A.2d 808, 810-12 (Del.Fam.Ct. 1992); Minkin v. Minkin, 180 N.J.Super. 260, 434 A.2d 665 (1981) (same). The argument against viewing giving a Get as a religious act is based on a distinction in Jewish law between (1) laws that govern men’s and women’s relationships with God, and (2) laws that govern relationships among and between men and women. The former are religious laws, the latter are civil in nature. Laws governing marriage and divorce fall in the latter category. Minkin, 180 N.J.Super. 265-66.
Other courts disagree. "[T]he conclusion that an order requiring the husband to provide a ‘get’ is not a religious act nor involves the court in the religious beliefs or practices of the parties is not at all convincing." Aflalo v. Aflalo, supra, 685 A.2d at 538 (rejecting Minkin and holding that first amendment forbids a court to order a husband to give a Get). See also Masri v. Masri, supra, 499; cf. Avitzur v. Avitzur, 58 N.Y.2d 108, 113 (Ct. of App. 1983) (enforcing provision of Ketubah that required parties to appear before a rabbinical tribunal, but specifically noting that "the plaintiff is not attempting to compel defendant to obtain a Get ... ").
The "Beit Din" Cases
The third category includes cases in which a party seeks to enforce a Ketubah provision which obligates both parties to appear before a "Beit Din"- a rabbinical council- for guidance on divorce-related matters. As noted in Part I, the parties’ Ketubah includes such a provision.
Avitzur v. Avitzur, supra, is illustrative. The parties were granted a civil divorce, but the husband refused to give his wife a Get. The wife did not seek a court order compelling the husband to give her a Get. Instead, she sought an order compelling the husband to comply with a provision in their Ketubah requiring them to appear before a Beit Din, which has the authority under Jewish law to order the husband to give the wife a Get. The husband objected to the requested relief on first amendment grounds.
A deeply divided New York Court of Appeals rejected the husband’s constitutional argument. The majority explained, "the provisions of the Ketubah relied upon by plaintiff constitute nothing more than an agreement to refer the matter of a religious divorce to a nonjudicial forum. Thus, the contractual obligation plaintiff seeks to enforce is closely analogous to an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties. There can be little doubt that a duly executed antenuptial agreement, by which the parties’ agreement in advance to the resolution of disputes that may arise after its termination, is valid and enforceable ... Similarly, an agreement to refer a matter concerning marriage to arbitration suffers no inherent invalidity ... This agreement- the Ketubah- should ordinarily be entitled to no less dignity than any other civil contract to submit a dispute to a nonjudicial forum, so long as its enforcement violates neither the law nor the public policy of this State." (Citations omitted.) Id., 58 N.Y.2d. 114.
Notably, the majority also stated, "[it] should be noted that plaintiff is not attempting to compel defendant to obtain a Get or to enforce a religious practice arising solely out of principles of religious law." Id., 113. This statement suggests that the Avitzur majority would have viewed a request for specific enforcement of a Get provision as raising much more troubling constitutional issues.
The dissenting judges would not have enforced even the Beit Din provision. "We are of the opinion that to grant the relief plaintiff seeks in this action, even to the limited extent contemplated by the majority, would necessarily violate the constitutional prohibition against entanglement of our secular courts in matters of religious and ecclesiastical content." Id., 116.
In sum, case law considering the first amendment implications of enforcing religious marriage contracts reveals stark disagreements, both within and across jurisdictions.
C.
Application of the Neutral Principles Approach to the Present Case
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.
Initially, the court reiterates that this case does not fall neatly into any one of the three categories of cases discussed above. Obviously, it is not a mahr case, nor does it involve a Get. In fact, the plaintiff has given the defendant a Get; the parties are already divorced under Jewish law. Nor does the plaintiff seek a judicial order compelling the defendant to appear before a Beit Din for guidance. Lastly, the 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.
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. See Plaintiff’s Memorandum of Law in Support of Motion for Enforcement of the Parties’ Prenuptial Agreement (dated April 30, 2019), p. 6 ("The parties agreed to a choice-of-law" clause, allowing the Rabbinical Court to provide the parties guidance as to how to divide their assets"); Plaintiff’s Memorandum of Law Regarding Entanglement with the First Amendment In Plaintiff’s Motion to Enforce (dated July 12, 2019), pp. 12-13.
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.
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 thoughtful 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 (last visited September 10, 2019) (copy retained in the file of this case in the New Haven Superior Court clerk’s office).
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. See Aflalo, 685 A.2d 538.
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, 177 Ariz. 231, 866 P.2d 899 (Ct.App.Div. 1 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." Id., 866 P.2d 902. The plaintiff cites In re Marriage of Goldman, supra, 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 Appellate Court- First District (4th Division) affirmed and rejected the husband’s argument that the first amendment barred the trial court from ordering him to give his wife a Get. Id., 794-95.
Finally, this court, like the court in Aflalo, 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.
III. CONCLUSION
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.
Accordingly, the plaintiff’s motion to enforce the Ketubah (#116.00) is denied insofar as it seeks judicial enforcement of the "Torah law" provision. The plaintiff’s motion for order re: bifurcation (#118.00) and the defendant’s objection thereto (#121.00) are denied as moot in light of this decision.
SO ORDERED.