I'm remembering that big dispute amongst Lubavitchers that came up a couple years ago about who would become leader after the grand-poobah-rebbe died. There were serious assets in question, so it would've been normal for the New York State courts to issue rulings, but, man, I could see the judge wanting to find a Jewish-law arbitration panel.

My first thought is that arbitration is arbitration. On the other hand, I do worry about coercion, as the article says, but is that bigoted of me? Or realistic?

Comma, comma, comma, comma chameleon.

There was an interesting article on the bet din in New York mag some years ago. Would it surprise you to learn that there are some truly of awful tales of their treatment of women in divorce and custody hearings?

It would not surprise me.

Can a lawyer speak up on what arbitration entails? It's obvious we're not talking about criminal proceedings (in which case the religious courts can suck it), but I'm not sure how the religious based 'court' differs from hiring an independent arbiter in a significant way.

"people should be able to agree to have family law cases resolved by religious courts if all concerned agree"

I think this phrase is the most important one.

Setting aside the question of whether the agreement is truly voluntary, why shouldn't people be allowed to decide how to resolve their disputes?

This is the article.

Sieger's close-quarter domestic skirmishing has escalated into a legal war that raises disturbing questions about the rights of Orthodox women, the integrity of the rabbinic courts, known as the betei din, and the ethics of a number of ultra-Orthodox rabbis, who stand accused by Sieger of taking hundreds of thousands of dollars in bribes to issue her husband the religious divorce ruling he wanted.

It has also raised some questions about New York's civil courts, where her case has crawled through the system, its progress stymied by dozens of motions, appeals, judicial turnover, and endless continuances--a Hasidic version of Jarndyce v. Jarndyce.

Cala:

The question is what law is the decider using? religious tenets or the law of the particular state?

Courts allow choice of law provisions all the time. (Virginia law decides this dispute or NY Law, etc)

The basic deal is that you can make a contract to arbitrate your disputes before a private arbitrator, and then the courts will enforce that contract, which means enforcing the decision of the private arbitrator (within limits, but pretty broad ones). In a business context, what that conventionally means is something like the American Arbitration Association, which ends up very much like litigation before a court, but with less formality and a arbitrator in the place of a judge who hopefully knows something about the subject matter.

But there's no reason you can't contract to have your disputes resolved by a religious court, and the courts will enforce that on the same terms as any other arbitration contract. I've run into litigations that interacted with bet dins a couple of times in my practice; never an Islamic or a Christian 'court', though.

LB is 100% correct. You could probably contract to have your disputes resolved by a Scientologist arbitrator.

Arbitrators don't have to issue written decisions, don't have to explain the law they relied on, and are reversible only in the most incredibly egregious circumstances ... if then.

Hey, we should insert "Ask the Mineshaft" provisions in a bunch of contracts!

Unfogged could earn a little money deciding disputes.

I'm not sure how the religious based 'court' differs from hiring an independent arbiter in a significant way.

One of my partners has litigated this issue several times for various religious groups we represent. In general, as long as what you have is an arbitration agreement freely entered into by the parties, the law (including religious law) and arbitral procedures they choose are binding to the extent any other arbitration agreement is binding.

10: Then I figure as long as the 'religious court' are abiding by the rules normally given to private arbiters, then whether it's religious is irrelevant.

Anyone getting their panties in a knot over Islamic courts who isn't getting their panties in a knot over covenant marriages or the betei din can suck it.

I have a dim recollection that some commercial contracts have written into the fine print that "disputes will be settled by Christian Law in the state of Arkansas" (or whatever), with the customer signing on and signing away. Maybe it was a software license agreement I ran across.

If businesses try to run around the law by getting customers to sign onto religious arbitration---if that becomes a trend, that is---then I'd start to get very worried.

In Virginia, a court still has to find that the agreement was in the best interests of the child. The agreement of the parties is significant, but not ultimate.

who isn't getting their panties in a knot over covenant marriages or the betei din can suck it.

Wrong thread Cala. Post in the Lent discussion.

Of course, this ties into the mandatory arbitration abused by confusopolies like credit card companies, telecom, etc. Hasn't that been discussed before here? Something about someone picked as an arbiter who found for a consumer and was never used again.

Ideally, a fix would extend both to this and to religious arbitration.

What's really weird about the article linked in 8, which I hadn't known, is what it says about Orthodox divorce. I'd known that there was a problem in the community for women whose husbands wouldn't grant a divorce. I hadn't known that the way it works is that the husband can get remarried without the divorce, but the wife can't -- she's still married, but somehow he isn't.

How can that be true? Anyone understand this?

In general, as long as what you have is an arbitration agreement freely entered into by the parties, the law (including religious law) and arbitral procedures they choose are binding to the extent any other arbitration agreement is binding.

In general I think this is all right and proper except for two things:

1. Recent supreme court jurisprudence has weakened the standard of "freely entered into" to the point of near meaninglessness (i.e. applicable precedent permits binding arbitration clauses in contracts of adhesion, which I find unconscionable and would love to see Congress reverse).

2. I would like to see some bright-line boundaries to make clear that certain types of contract provisions (particularly those that are inimical to our understanding of human and civil rights) are clearly rendered unenforceable in secular courts. For example, any religious arbitration system that excluded testimony from women should not be able to rely on the assistance of the state to enforce its judgments.

Setting aside the question of whether the agreement is truly voluntary....

That gives the game away. Often you're talking about a united community imposing its will on an isolated individual, usually a woman or child, who often has been dependent on the community so far during their life. The pressure is tremendous.

This kind of question comes up with the Amish, too, I think. They've negotiated a lot of little legal compromises allowing them to practice their religion when it conflicts with state or federal law. (There are also issue like this on Indian reservations, though they have a much stronger legal status.)

Family law almost always is what's in question in these cases, in my experience. There's a vague idea that The State should not interfere with The Family. On the other hand, many of the things we find most objectionable in Islam are family law questions. I think that The State should intervene on behalf of wives, daughters, and minor children.

In these cases I'm more inclined to take a second look at the Amish and the ultra-orthodox than I am to say "The ultra-orthodox do it, why can't the Muslims?"

Cultural tolerance always involves deciding where to draw the line. I'm in favor of drawing a fairly hard secular liberal individualist line. There's no way that all immigrant customs can be tolerated -- in much of the Islamic world unchaste daughters are killed and the murderers never prosecuted, and there have been cases of this happening in the U.S., Sweden, and elsewhere. If a hard line is drawn, some Muslims will figure out how to abide by American law, some will leave, and some will disregard American law and be prosecuted.

I can imagine cases in which mutual consent is genuine, where the American legal resolution of issues would be unsatisfactory to both parties, and the traditional religious resolution preferred by both. I don't think that these cases are typical.

Can a secular arbitration system decide that women's testimony doesn't count? If so, maybe the whole damn thing needs a rehaul.

19: I don't know if it is so uncommon. Dooce has written of her anger that her father could remarry in the temple and her mother could not. Mormon, not Jewish, obviously, but I think we are looking at a bit of cross cultural bullshittery.

That gives the game away. Often you're talking about a united community imposing its will on an isolated individual, usually a woman or child, who often has been dependent on the community so far during their life. The pressure is tremendous.

I agree, Emerson. That is why I just wanted to set it aside to get rid of the easy question.

Whether it was a voluntary election is a very difficult issue.

Can a secular arbitration system decide that women's testimony doesn't count?

That was a hypothetical example. I don't know if any real life religious arbitration systems in the U.S. are like that.

Family law almost always is what's in question in these cases, in my experience.

Not in the Orthodox community -- bet din handle business deals. I don't know anything about family law, so I don't know the comparative percentages, but business deals aren't an insignificant part of what religious courts handle.

I can imagine cases in which mutual consent is genuine, where the American legal resolution of issues would be unsatisfactory to both parties, and the traditional religious resolution preferred by both. I don't think that these cases are typical.

I disagree with you. I suspect that traditional religious resolution is preferred by both in most cases. But, there are some egregious cases where it doesn't.

I only skimmed the link by oudemia, but the article was written from one viewpoint, highlighting the bribery aspect. I tend to not trust such articles.

I am not suggesting that those things couldnt happen, but, if you remove the bribery aspect, and you view the case differently. The article assumes certain facts that may or may not be true.

In almost every case, one side's version is compelling if you believe it. The decider of fact hears both sides though.

22. According to LB, a secular arbitration system can decide what it damn well pleases, as long as it convinces the courts that all parties consent. In Britain, apparently, the Bet Dins can rule on the disposition of trusts, for example, and decide on who controls vast sums of money. On the other hand, one effect of their being semi-recognised is that if you don't like the decision you can appeal in the secular courts.

OTOH Sharia councils have no legal authority over here beyond the point where litigants agree to be bound by them. Secular courts are generally reluctant to involve them precisely because of issues such as the admissibility of women's evidence, communal pressure etc. as mrh points out. There was a lot of talk about this when Rowan Williams made his notorious speech.

27: I don't have any experience, so maybe you're right. When I heard the recognition of Muslim law proposed in Canada, it was said that it mostly would "just" be family law, and that raised a red flag for me. "Family" is a warm fuzzy for many Americans, but lots of families, including Christian families, are pretty nasty. So for me family law might be the worst.

I can see that in tight ethnic religious communities where a lot of high-end business is done by handshake agreements (the famous diamond merchants), and where communal conflict-resolution procedures are in place, both parties might prefer that to American law. Lawyer's fees and court costs can maker a lawsuit suicidal for both parties.

On the other hand, in such cases couldn't both sides go to the religious court first and then file a consent agreement with the secular court?

The overwhelming majority of disputes are solved by the parties, not by the courts.

29: Right, but we don't normally expect family law to make everyone better people through secular arbitration. It has nothing to do with warm fuzzies.

And it seems like an issue that could cut both ways. The woman in the article oudemia mentions is ostracized, but I'm not sure she'd be better off socially if her only recourse was to a secular arbitration process.

What I meant by "warm fuzzies" is that people think of The Family per se as benign, and The State per se as heartless and cold, but in reality families can be completely horrible -- in certain respects and certain cases, systematically horrible.

Obviously when people say "the Family" they mean white mainstream Christians. They have no qualms whatsoever about, say, breaking up polygamous families.

Obviously when people say "the Family" they mean white mainstream Christians. They have no qualms whatsoever about, say, breaking up polygamous families.

Good point minivet.

Also, in many areas, grandparents have no rights.

They have no qualms whatsoever about, say, breaking up polygamous families.

My people have not forgotten!

My people have not forgotten!

Your honey's people too, right?

There are some similarities in your backgrounds, true?

32: Nah, no fuzzies here regarding families, especially ones in the midst of divorces. Just that if it's wrong to have a case decided with binding arbitration because the results are unfair to women, it's wrong whether the justification was religious or secular.

Just that if it's wrong to have a case decided with binding arbitration because the results are unfair to women, it's wrong whether the justification was religious or secular.

I don't know what the answer is, but you are judging whether it is fair by your own standards of fairness, not necessarily what a particular religion or culture thinks is fair.

Nobody likes to be on the losing side of a dispute, but you have to be careful about overlaying your own perspective onto two other people's dispute.

OK, but the claim is that these religious courts are unfair to women. I think that it would be true of Jewish and Christian religious courts: the woman is the weaker vessel and should submit herself to her husband blah blah blah.

The religious wackos really are in a bind here, because Islam is a Satanic devilworshipping religion of murder and hate, but at the same time a precedent here would be a step away from secularity.

Your honey's people too, right?

Yes. I know all about my family history, mundane in its details as it sometimes is in comparision to his. He has completely filtered out his family history, though, because his parents have a tendancy to be snobbish pains in the ass.

OK, but the claim is that these religious courts are unfair to women.

Very interesting topic, but I dont have time to discuss procedural due process v. substantive due process. Perhaps someone else can move this discussion forward.

Also, in many areas, grandparents have no rights.

"Grandparent's rights". Bah.

I actually do think that in non-consent situations American standards of fairness should be imposed on immigrants of other cultures. I remember when I was working with Hmong I found out that daughters had to obey their father and also their brothers and wives had to obey their mothers-in-law. It was pretty intense -- close to slavery.

It's not possible or desirable for America to accept and support all aspects of immigrant culture. Some multiculturalists seem to have spent no time at all on deciding where the line is to be drawn.

One of the factors making me more hardline about this is that I've known a considerable number of Muslims who were terrified of the prospect of having to live under Muslim law.

Perhaps some kind of government arbitration certification board would be helpful? I'm sure plenty of people enter these things without knowing biases involved. Maybe it could ban those that don't follow certain principles of fairness, or less activist, it could require that the major differences from normal law be presented up front.

You know, when that archbishop's speech thing happened in the UK, it seemed to me like a sensible thing to do would be to talk to as large a cross-section of Muslims, or even just Muslim women, as possible. Find out what the people would would be using the theoretical courts would have to say about it. There would be, of course, many perspectives--but it would still be very helpful. Might clear up some of the questions about women's position vis-a-vis the courts, too. What kind of community pressures do people themselves feel like they're under?

There's a big difference between saying "your legal framework is problematic because it oppresses women in my opinion" and saying "your legal framework is problematic because the majority of women covered by it feel that they don't get a fair deal". Which might or might not be the case, of course.

38: I'm not sure we're disagreeing. If 'what the law thinks is fair' normally applies to the results of arbitration, then it should apply whether the arbitration is secular or religious. If it doesn't, it doesn't.

43: You seem to be extending this to the Amish and the orthodox Jews, too, which makes your position consistent. I do quibble with 'immigrant culture', however, unless white people from Arkansas are immigrants. This isn't about American institutions being overrun by foreigners who don't get it, but a question of whether the source of one's values is a valid ground for state intervention in a personal dispute.

What Emerson said. Culture can go eat a dick.

American law is based on individuals rather than religious groups, so it doesn't make any difference what the majority of Muslim women feel. If even one Muslim-American woman can show that she has fewer rights than non-Muslim American women, and objects to that, then American law should support her.

I would expect that there others besides women who lose under Muslim law, but the women's rights issues are best known.

In tight communities, especially tight communities not fully accepted by the majority, enormous informal pressure can be put on individuals who fight the consensus.

This is long, so feel free to skip it.

The following is taken from 38 American Law Reports (5th) 69.

---

Courts are willing to enforce arbitration agreements between spouses when the issues to be arbitrated concern alimony or spousal support. The trend in the courts, with some exceptions, is to enforce arbitration agreements concerning child support as well. The courts are divided, even within the same jurisdiction, as to the validity of arbitration clauses effecting determinations of custody or visitation. * * *

§ 5[a] Arbitration provisions concerning custody or visitation--Held valid

Provisions for the arbitration of disputes involving child custody or child visitation rights have been held valid in some cases.

The court in Spencer v Spencer (1985, Dist Col App) 494 A2d 1279, recognized that the parties could validly agree to arbitrate child custody, but that provisions concerning custody and child support remain within the court's jurisdiction. The court explained that once the arbitration decision is confirmed and ratified by the court, the arbitration becomes the parties' separation agreement. As such, the separation agreement is a contract subject to the principles of contract law, the court said, but it may be modified by a court, as litigants by their voluntary acts cannot oust the court of jurisdiction.

An agreement between spouses made in contemplation of their immediate and permanent separation, that provided for arbitration of alimony, custody, and child support, was held valid in Masterson v Masterson (1901) 22 Ky LR 1193, 60 SW 301, affirming a judgment which had enforced the arbitration award. The agreement for arbitration further stipulated that the decision of the arbitrators as to the custody and support of the children should continue in force until changed, altered, or modified by the court according to the best interests of the children. The court tested the validity of the agreement by the principles applicable to separation agreements generally, reasoning that the agreement was valid because, at the time of its execution, the parties had agreed to an immediate and permanent separation.

In Kovacs v Kovacs (1993) 98 Md App 289, 633 A2d 425, cert den 334 Md 211, 638 A2d 753, although an agreement to arbitrate such matters as custody and support was found valid by implication, the court found that parents cannot bind the court by such an agreement, nor can they bind the court by allowing an arbitrator to make the decision for them. The court said that agreements to arbitrate are subject to Md Code § 8-103(a) of the family law article which provides that the court "may" modify any provision if such modification is in the best interests of the children. Accordingly, the court held that when a party challenged the arbitration award with regard to custody and visitation the trial court should have made an independent determination of whether the decision of the arbitrators was in the best interests of the children. In addition, the court said, the trial court should have considered state statutory guidelines for child support, and modified the arbitrator's award if necessary. The awards of alimony and property issues were properly entered without judicial review. * * *

§ 5[b] Arbitration provisions concerning custody or visitation--Held invalid

Some decisions have struck down arbitration provisions when the issue concerned custody or visitation.

Where an agreement to arbitrate involves a matter which is not subject to nonjudicial determination, such as custody of children, the legal issue involved is nonarbitrable, the court held in Stone v Stone (1974, La) 292 So 2d 686.

The court in Nestel v Nestel, (1972, 2d Dept) 38 App Div 2d 942, 331 NYS2d 241, held that it is generally inappropriate to arbitrate custody of minor children; nor is it permissible practice to arbitrate less weighty aspects of custody, such as visitation, choice of schools or summer camps, and the like.

Agreements to arbitrate custody were held not to be enforceable in the courts, because issues of custody and visitation are so interlaced with strong public policy considerations that they are beyond an arbitrator's discretion in Glauber v Glauber (1993, 2d Dept) 192 App Div 2d 94, 600 NYS2d 740.

Disputes regarding custody and visitation are not subject to arbitration, according to the court in Cohen v Cohen (1993, 2d Dept) 195 App Div 2d 586, 600 NYS2d 996. In this case, neither the separation agreement nor the judgment of divorce awarded custody, and both parties had the right to take the children to Israel under certain conditions. The mother petitioned the court for sole custody of the children, alleging that the father had abducted one child and taken her to Israel. The child was returned to the mother by the Israeli police after the mother applied for assistance pursuant to the Hague Convention on Child Abduction. The separation agreement specifically provided for arbitration of such disputes by a rabbinic court.

A provision in a separation agreement requiring arbitration of custody or visitation rights in the event that either spouse should move, or notify the other party of intention to move, out of the city or state of New York, was held invalid in Hill v Hill (1951) 199 Misc 1035, 104 NYS2d 755, denying the wife's petition to compel arbitration. Pursuant to the arbitration clause, the wife notified her husband of her intention to move to Florida, to take the children with her, and to propose, in an arbitration proceeding, a resettlement of custody and visitation rights. Apparently, the wife already had at least primary custody of the children but hoped to gain more exclusive control over them. Since the courts stand in the relation of parens patriae to minor children, determining questions of custody and visitation according to the welfare and best interests of the children, the court reasoned that parents can never finally contract with respect to the custody of their children. Thus, the court concluded that the separation agreement was obviously not binding on the court. While admitting that there might be an ever-widening field of usefulness for arbitration in commercial controversies, and even that arbitration might be a practical, efficient, and expeditious way to settle a multitude of disputes and disagreements, the court nevertheless declared that such matters as the custody of a child and the right of visitation are not properly the subject of arbitration, depending for their determination upon a judicial finding as to the best interests of the child. Finally, the court distinguished cases which had upheld arbitration clauses in agreements affecting alimony and support, on the ground that the breach of an agreement to pay alimony or support may be made the basis of an action for breach of contract or for specific performance, while the breach of custody provisions supports no such action.

Except for Native Americans who have their own body of law, the sharpest cultural conflict in the US are between immigrant traditions, some of which are formalized in religions, and American law. American pluralism isn't really that great. Most hyphenated Americans are pretty much like differently-hyphenated Americans, and subcultures and countercultures are not really cultures, just consumption patterns. New religions accused of being cults are indigenous exceptions, and they should conform to American law too.

To summarize, arbitration in family law in religious courts tends to be upheld when it deals only with the adults, but when it involves minor children, the secular court often retains the jurisdiction to modify the arbitration agreement according to public policy interests, especially the interest of the minor child(ren).

19:
Yes, the man can remarry and not the woman. In theory, a rabbincal court can force the man to give the woman the divorce; in practice, this doesn't work very well. It is also possible for the woman to refuse to accept the get. Men are allowed multiple wives, so yes, they can remarry. But they'll be shunned by the religious community, though it might mean very little.

Most people avoid the whole issue now by having prenups with massive financial penalties for refusing the get -- usually on the order of 10k/day for refusing to grant/sign/whatever. These penalties are considered acceptable in Jewish law.

It's also the case that men who are going off somewhere dangerous where they might go missing and never be found will usually give their wives gets before they leave, just in case. There are weird issues, too, if you don't have kids and your husband dies and has a brother -- he has to agree to divorce you too, essentially.

Unrelated: a beit din usually deals with all legal issues in the diamond trade. But it's a small community, so shunning there works better.

Men are allowed multiple wives, so yes, they can remarry.

See, this is news to me -- I've never heard of polygyny being a legal option in the Orthodox community since biblical times.

52: The brother thing is funny. An older friend became pretty orthodox late-ish in life and after the death of her husband. When she wanted to remarry, she had to go to her brother-in-law, who was NOT a religious man, and ask to, I believe I am getting this correct, spit in his shoe. And he was like, uhhhh, oooookay. (She thought it was funny, too.)

In the old days the widow would have to marry her brother-in-law -- actually, it was the brother who had to marry the widow, for his dead brother's sake. Onan was reluctant:

(Gen. 38, 6-10):

And Judah took a wife for Er his firstborn, whose name was Tamar. And Er, Judah's firstborn, was wicked in the sight of the Lord; and the Lord slew him. And Judah said unto Onan, Go in unto thy brother's wife, and marry her, and raise up seed to thy brother. And Onan knew that the seed should not be his; and it came to pass, when he went in unto his brother's wife, that he spilled it on the ground, lest that he should give seed to his brother. And the thing which he did displeased the Lord: wherefore he slew him also.

There's a moral to the story.

Poor Onan. It's always seemed unfair that the Quintessential Masturbator wasn't even.

Everyone knows that Dorothy Parker named her parrot Onan, right?

54: I know that this is going to sound all whiny, insensitive, tasteless, and nasty, but one of the less-terrible-but-still-terrible, moderately or somewhat or slightly terrible things about the Holocaust was that joking about Orthodox Jewish customs became inappropriate and inadvisable.

Except by Philip Roth, and even he got a lot of shit for that early in his career.

I

57: Haha! Really? Because he spilled his seed on the ground? That is priceless. How I love her.

58: Well, John, even without the Holocaust there would still have been enough pogroms, forced conversions, blood libel trials, etc. to make it unacceptable for you as a Gentile to mock Jewish customs.

It is unfortunate that the Holocaust has made every so touchy that even Jews can get in trouble for making fun of Jewish customs.

But Philip Roth doesn't really make fun of Orthodox Jewish customs -- I don't he's even particularly familiar with the practices of serious Orthodox Jews. What Roth mocks (mostly) is the quasi-religious practices of essentially secular American Jews.

Well, it was the kosher laws he was ridiculing, so not quite secular.

Do you get what I'm saying? I was raised by Hottentots and Zulus! I couldn't even contemplate drinking a glass of milk with my salami sandwich without giving serious offense to God Almighty. Imagine what my conscience gave me for all that jerking off! The guilt, the fears -- the terror bred in my bones.

Of course, what's objectionable in that passage today is quite different.

55: I had always assumed that Onan pulled out, but rereading it here I think that the story actually leaves room for the possibility that he walked in and ostentatiously jerked off as a kind of "(I won't) fuck you." Of course, it's possible that "went in unto" has a specifically sexual meaning.

Let's keep the storylines clear. Portnoy did not jerk off in front of his brother's widow he was supposed to enter into. He just jerked off universally, into a Kleenex.

Thousands of years later, Onan is still a model for some of us, whereas nowadays women no longer use mandrake roots to get themselves a place at the front of the fucking-queue. For us in these fallen times, the conception of Issachar is but a dead metaphor.

Of historical relevance to the post topic.