Academic journal article Fordham Urban Law Journal

The Collision of Church and State: A Primer to Beth Din Arbitration and the New York Secular Courts

Academic journal article Fordham Urban Law Journal

The Collision of Church and State: A Primer to Beth Din Arbitration and the New York Secular Courts

Article excerpt

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.


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. …

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