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New York - Orthodox Jewish Groups Asking Appellate Court To Defend Viability Of 'Beth Din' Court System

Published on: August 12, 2009 11:38 AM
By: PR
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New York - Today, the Union of Orthodox Jewish Congregations of America (the “Orthodox Union”), through its Institute for Public Affairs, joined with Agudath Israel of America and Torah U’Mesorah in filing an ‘amicus curiae brief’ with the New York State Appellate Division asking that court to defend the viability of the Jewish ‘beth din’ court system. The issue before the appeals court arises from the case of _Brisman v. Hebrew Academy of the Five Towns & Rockaway_ (“HAFTR”).

Rabbi Brisman was a religious studies teacher at HAFTR and was dismissed from his position due to a dispute over hashkafa (religious philosophy). Pursuant to an arbitration agreement, Brisman sued HAFTR in an action brought to the Beth Din of America for reinstatement and back pay. The Beth Din ruled in favor of Brisman. The decision was brought by Rabbi Brisman to New York state court for affirmation and a judge deemed the Beth Din’s ruling to be “irrational” and overturned it in favor of HAFTR. That ruling is now before the Appellate Division.

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The brief filed by the Orthodox Union and its /amicus/ partners explicitly states it is not taking a position on merits of the underlying dispute between Rabbi Brisman and HAFTR, does make the following arguments to the appellate court as to why the New York trial judge’s ruling should be overturned:

[1] The trial court unconstitutionally interfered in a religious dispute between a religious school and a religious studies instructor; [2] The trial court incorrectly ignored the parties’ arbitration contract which provided that their dispute would be settled in the Beth Din; [3] If the secular court is to review the “rationality” of the Beth Din’s decision, it must do so measured against the principles of Jewish Law with regard to teacher tenure; [4] Should the trial court’s decision stand, it will undermine the viability of the Jewish Beth Din system, and thus infringe upon the Free Exercise rights of Orthodox Jews and burden secular courts with additional caseload. The full text of the brief is available here: 

Nathan Diament, public policy director of the Orthodox Union stated:

The Orthodox Union believes the lower court’s ruling in this case undermines the long-established and appropriate relationship between secular and ecclesiastical courts. Members of the Orthodox Jewish
community, and other communities of faith, are often obligated to resolve disputes within their religious institutions. Without the assurance of non-interference by secular courts and the reliable,
religiously neutral enforcement of arbitration proceedings, such religious liberty and autonomy is undermined.



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Read Comments (31)  —  Post Yours »

1

 Aug 12, 2009 at 10:44 AM Anonymous Says:

The issue is a very narrow contract law question as to whether the arbitration agreement in which the parties initially agreed to adhere to the bes din's decision provides for any appeal in the event that the bes din failed to issue a decision in accordance with its own rules and requireements for "reasoned decisionmaking". The courts will NOT address the substance of the bes dins decision or whether it conforms to halacha but simply the procedures it followed.

2

 Aug 12, 2009 at 10:57 AM Anonymous Says:

I agree w/ No. 1. UO and Agudath are over-reacting. This is not a real threat to beis dins. This is a contract issue and the arbitration statute clearly spells out what the scope of judicial review is. This is not an issue of state entanglement in religious affairs. They could better spend their money elsewhere. (Although hopefully not on continuing their fight against victims of pedophilia.)

3

 Aug 12, 2009 at 10:56 AM Raphael Kaufman Says:

How can a secular court determine what is "reasonableness" under Jewish ecclesiastic law? would that not, in itself, infringe on "Free Exercise"?

4

 Aug 12, 2009 at 10:52 AM Anonymous Says:

So what happens when Moslems get the court system to uphold Sharia law for Muslims- do we get stonings, death sentences and all the rest? Better be careful on this one, I say.

5

 Aug 12, 2009 at 11:07 AM Anonymous Says:

As an attorney, All I can say is, I wish them all luck. I do know that the judge who overturned Bais Din was Modern Orthodox from the five towns. I'm very familiar with this case.

6

 Aug 12, 2009 at 11:07 AM Anonymous Says:

If two Moslems agree in a contract to subject their disputes to binding arbitration by a sharia panel, than that is no different than their agreement to resolves disputes by referrring the to the American Arbitration Association or the Monsey Bes Din. The only issue for the civil courts is whether the procedures in the civll part of the contract were followed and whether the panel followed its own rules, but not the factfinding or determination of the decision on its merits.

7

 Aug 12, 2009 at 11:07 AM Hate em Tatem Says:

The filing does not make sense.

"[1] The trial court unconstitutionally interfered in a religious dispute between a religious school and a religious studies instructor"

The dispute may be over a religious matter, but it is a contract question, not a religious question. The fact that the issue was hashkafa is not relevant.

"[2] The trial court incorrectly ignored the parties’ arbitration contract which provided that their dispute would be settled in the Beth Din"

The case was settled in Beis Din. Be that as it may, a litigant that goes to arbitration may petition a court to overturn the arbitration ruling. A judge should give strong deference to what the arbiter rules. However, the judge may overturn the ruling.

"[3] If the secular court is to review the “rationality” of the Beth Din’s decision, it must do so measured against the principles of Jewish Law with regard to teacher tenure"

Huh? Good luck with that one. Maybe the judge will bring a rayeh from R' Boruch Ber.

What needs to be done is to teach the children the halachos about going to secular court. HAFTR obviously did not care and did whatever it wanted to do. Teaching children that that type of behavior is acceptable is problematic. In addition, why agree to a clause in a contract about going to beis din if you plan on undermining the beis din anyway?

8

 Aug 12, 2009 at 11:21 AM Anonymous Says:


How does it actually work? According to US law do our courts have a legal requirement to uphold a private religions’ court (a/k/a BEIS DIN) ruling?

In a case where two people go to BD or any other religious court is that PSAK (ruling) recognized by our court system?

If you happen to know the answer I would appreciate it.

9

 Aug 12, 2009 at 12:41 PM yosse nathan Says:

how couldHebrew Academy of the Five Towns & Rockaway_ (“HAFTR”)appeal a bes dins decision to the courts . don't you sign a paper that says you will except what the bes din says . what kind of yeshiva decides to go against the bes dins pesak and they are the ones who are supposed to teach our kids .

10

 Aug 12, 2009 at 01:35 PM Anonymous Says:

the court has a right to overturn beth din decision if a party files in court within 45 days of the psak. do not think for a minute that a beth din decision is always correct.

11

 Aug 12, 2009 at 01:28 PM knowitall Says:

Reply to #3  
Raphael Kaufman Says:

How can a secular court determine what is "reasonableness" under Jewish ecclesiastic law? would that not, in itself, infringe on "Free Exercise"?

Agreement to go to Bes Din is considered an agreeement to arbitrate. Arbitrations may be set aside under circusmtances, such as corruption, fraud, partiality or where the panel exceeded its authority. Mere disagreement with the results alone will not serve as a basis for setting it for vacating the award.

12

 Aug 12, 2009 at 01:24 PM Anonymous Says:

Reply to #9  
yosse nathan Says:

how couldHebrew Academy of the Five Towns & Rockaway_ (“HAFTR”)appeal a bes dins decision to the courts . don't you sign a paper that says you will except what the bes din says . what kind of yeshiva decides to go against the bes dins pesak and they are the ones who are supposed to teach our kids .

The yeshiva contended that the bes din's decision was irrational and not based on reasoned decisionmaking under halacha. It is not asking the court to paskin what halcha should require, just that he bes din issued an incoherent and irrational decision that could not be explained under Halacha ,Shaira or any other legal code.

13

 Aug 12, 2009 at 01:23 PM Anonymous Says:

I am an outsider to Beis Din system and to secular law, but have enough encounters to at least have an opinion.

I see this matter becoming a potentially serious problem. Regardless of the precise technicalities of this case, there is a precedent that is being set, at least for the observing lay public. “If you don’t get what you want from Beis Din, take the case to secular court.” This is a clear threat to the integrity and effectiveness of Batei Din, and it thereby undermines the basic halachos about arkaos. Even a Yid has the times in which going to arkaos is permitted, but each instance requires a psak that gives the heter for this. The picture that a yeshiva and a mechanech are in arkaos, after Beis Din paskened, because one party was unhappy with the outcome looks really bad. That seems to me to be good reason to involve some of our major organizations to interrupt the process that projects this picture.

14

 Aug 12, 2009 at 12:19 PM Anonymous Says:

Dina d'Malchusa Dina - the beis din certainly has leeway in their decision making process, but they must ultimately not bump into or go against US laws. This goes for employment which is federal and for things like Child Support and other family law issues. The beis din is relying on US contract law to truly bind the parties, they cannot then ignore the law of the land in their decisions...

15

 Aug 12, 2009 at 12:11 PM Midwestern Guy Says:

Reply to #4  
Anonymous Says:

So what happens when Moslems get the court system to uphold Sharia law for Muslims- do we get stonings, death sentences and all the rest? Better be careful on this one, I say.

Ummm, there's a huge difference between criminal and civil law. Bais Din is considered binding arbitration between two consenting parties. Those cases are all civil. In criminal cases, it's always the People versus the Defendant. Those cases, by definition, can't ever be given to Bais Din until Moshiach comes. It's very simple. Bais Din only handles arbitration, so there's nothing to be afraid of in terms of the Moslems having their own binding arbitration.
By the way, I like how you spelled "Moslem". It's the spelling I've always used. The PC police can come and arrest me for not conforming to the new spelling "Muslim".

16

 Aug 12, 2009 at 12:07 PM David Says:

Reply to #8  
Anonymous Says:


How does it actually work? According to US law do our courts have a legal requirement to uphold a private religions’ court (a/k/a BEIS DIN) ruling?

In a case where two people go to BD or any other religious court is that PSAK (ruling) recognized by our court system?

If you happen to know the answer I would appreciate it.

It's actually pretty straight-forward. It's basically an arbitration agreement-- you and I can sign an agreement to have anybody we like decide our dispute pursuant to any principles we like. Generally speaking (absent some kind of improper behavior) a court will uphold this kind of agreement, regardless of any religious involvement. I'm not sure why it didn't in this case.

17

 Aug 12, 2009 at 12:03 PM Charlie Hall Says:

The trial court decision was a noted example of judicial activism; it substituted a single judge's negative policy opinion regarding tenure for teachers for the policymaking action of the school in offerring tenure to faculty. This interference in contract law should have gotten conservatives all up in arms. It also will have the effect of making employment in private schools even less attractive than it is today, making it harder to attract people who would be the best teachers. I hope that the brief is successful and the trial court decision is overturned.

18

 Aug 12, 2009 at 02:30 PM Anonymous Says:

Why doesn't the Beth Din issue a siruv against the school?

19

 Aug 12, 2009 at 03:30 PM Anonymous Says:

Reply to #18  
Anonymous Says:

Why doesn't the Beth Din issue a siruv against the school?

Based upon information I heard from people who claim to be familiar with the case, the school is adhering to the psak from Beth Din. They nevertheless wanted to challenge the plaintiff's petition for an arbitraton award in court, just because they do believe the psak to be irrational. According to my source Brisman had to be induced to take it to the appelate division, so as not to let a bad court decision stand, and defend Beth Din as a whole, and not because for his own sake, since the school is anyway adhering to the psak. Can anyone confirm this?

20

 Aug 12, 2009 at 06:11 PM Chgolaw Says:

This is not the first time NY has had a similar case. About ten years or so ago, in a Din Torah, the Beis Din -- which had a reputation for being a less than honest Beis Din -- entered a decision for Rueven for several hundreds of thousands. The loser, Shimon, took the decision to Court claiming that the psak was against halacha and was due to its being less than honest. A nationally known and respected posek testified in favor of Shimon and the Court reversed saying that the psak was against halacha. The Appellate Court affirmed the trial court and Rueven took the case to the NY Supreme Court (whatever its name). Again the Aguda filed an amicus in favor of the falshe Beis Din claiming that the system has to be upheld even if the Beis Din had a bad reputation and that the award was improper and that we cannot have Goyishe judges saying what is or what is not halacha. That Court overturned the trial court and reinstated the original psak.

21

 Aug 12, 2009 at 06:14 PM SG Says:

If you refer to the RUBASHKIN case 1994:
Judge ruled ONLY that going to the BD "Stops the Clock".
AS a legal arbitration one party cannot further claim that the statute of limitations has run out. Those are facts.

22

 Aug 12, 2009 at 09:23 PM oh no not again Says:

are we really just trying to put down the hasids moral values?! when any religion puts up any standards for their schools, could you bring in a gay christian lets say, and you wouldn't be able to fire him if he sets a bad example? haskafa is just an acronym to moral standards, and yes you should be able to fire any teacher for being gay, or christian in a muslim school or a jewish school.

2) are we really comparing apples with apples when saying that muslims agreeing to sharia law would be agreeing to stoning or whatever other terrorism would be judged against the defendant being that we adhere to jewish courts? (violence, torture, terrorism, etc. goes against everything america stands for, and quite frankly resolving disputes through expressing religious freedom is part of our constitution. lets stop trying to slander and bias against our american brothers, lets just try finding some common ground. religious freedom, happy lives, etc, and no terrorism, violence, torture or the like!

LONG LIVE AMERICA

23

 Aug 12, 2009 at 08:54 PM Anonymous Says:

Bes Din should stay out of U.S. secular legal system because these are radically different schools of thoughts and operations. Last thing we need is legal recognition by the government of every ethnic group's religious, tribal, traditional or whatever legal systems people have. (Muslim honor killings are also "legal" in their courts.)
Bes Dins don't recognize female witnesses on equal footing over male witnesses at least in theory, and that's just the basic problems. So, no U.S. court system should not rule on the credibility of Bes Din.

24

 Aug 12, 2009 at 08:33 PM Zoken Mamreh Says:

The problem with beis din arbitration agreements is simple. It is a waiver of rights. The Rabbis can order whatever they wish without any explanation or reason. This is Neged Shulchan Oruch, and Kneged the Seichel. Anyone who signs such an arbitration is Bgeder Chasimah BTois. That is why the courts do not accept their ruling. However, if the Psak would be based on fact and Halacha, with full explanation, the judge would accept it is an arbitration. There is only one known Bais Din in New York State, that provides a full Birur Halacha. Shar Hamishpot of Monsey.

25

 Aug 13, 2009 at 09:26 AM Charlie Hall Says:

Reply to #22  
oh no not again Says:

are we really just trying to put down the hasids moral values?! when any religion puts up any standards for their schools, could you bring in a gay christian lets say, and you wouldn't be able to fire him if he sets a bad example? haskafa is just an acronym to moral standards, and yes you should be able to fire any teacher for being gay, or christian in a muslim school or a jewish school.

2) are we really comparing apples with apples when saying that muslims agreeing to sharia law would be agreeing to stoning or whatever other terrorism would be judged against the defendant being that we adhere to jewish courts? (violence, torture, terrorism, etc. goes against everything america stands for, and quite frankly resolving disputes through expressing religious freedom is part of our constitution. lets stop trying to slander and bias against our american brothers, lets just try finding some common ground. religious freedom, happy lives, etc, and no terrorism, violence, torture or the like!

LONG LIVE AMERICA

No religious court, Jewish, Muslim, or Christian, would have its decisions accepted regarding criminal law -- only property disputes between indivuduals who have voluntarily submitted to the jurisdiction of those courts. Remember that Jewish courts in theory have the ability to mandate lashes but that is not done in the US.

26

 Aug 13, 2009 at 11:31 AM Chgolaw Says:

Zoken Momreh's post is nonsensical. EVERY arbitration agreement is a waiver of "rights." So?? And since when is going according to halacheh "waiving one's rights"? Whatever "rights" you have under halacha is the the "rights" you have.

27

 Aug 13, 2009 at 11:39 AM Anonymous Says:

Reply to #5  
Anonymous Says:

As an attorney, All I can say is, I wish them all luck. I do know that the judge who overturned Bais Din was Modern Orthodox from the five towns. I'm very familiar with this case.

You clearly are not. This case was before a judge in Brooklyn, not Nassau county. How could he live in the 5T's if hes a sitting judge in Kings?

28

 Aug 13, 2009 at 11:51 AM Gadolwannabe Says:

The crux of the amicus brief is that there is no such concept of "irrational" when it comes to a psak of beis din and no secular court can determine whether a psak is rational or irrational. That is a position that is very difficult to refute. The upshot is, however, that one should stay away from litigating before a beis din because of the fear that the psak will be "irrational" and there will be no higher court to whom one could appeal to overturn the beis din's decision. If the Appellate Division reverses the lower court the OU and Agudah may find themselves facing the maxim: be careful what you wish for, you might get it.

29

 Aug 13, 2009 at 06:41 PM Anonymous Says:

Obviously a school must be able to fire a teacher for wrong hashkafa-if Satmar hires a Rebbe who goes off the Derech and advocates chillul shabbos-they should be fired. I personally would not have fired for the hashkafa difference involved-but it has to be the discretion of the school.

30

 Aug 14, 2009 at 06:40 AM Anonymous Says:

Under NYS law a Board is responsible for thefunctioning of an organization-it is clearly against public policy to have a situation where the board of a tax exempt organization can't ever fire an incompetent employee. I am not suggesting that Rabbi Brisman was-I am discussing theory, A charitable organizations assets are for the purpose of furthering the goals and missions of an organization-that is why hypothetically a beis din could not legally order a school to pay a Rebbe 10 million severance pay.
Re the brief-who says schools are required to follow Torah Umesorahs policies-it is afunction of the school policy.

31

 Aug 14, 2009 at 09:02 AM zoken mamreh Says:

# 26 The first 26 simonim in choshen mishpot are called hilcjos dayanim, Unfortunately, the beis din arbitration agreement specifically excludes the dayanim and the case from being governed by these halachos. That is why the waiver of rights is kneged halacha. The Beis din should explain the psak based on facts and Halacha, something they never do, This is Kneged Shulchan Oruch.

32

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