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Seder in the Court

Eytan Kobre

More and more, halachah is entering the courtroom, where secular judges have to consider areas of Jewish law such as yerushah, shtaros, and gittin. How do lawyers explain these concepts? And is anyone on the other side of the bench listening?

Wednesday, January 29, 2014

In the midst of marital difficulties, a woman approached two prominent Five Towns rabbanim for guidance, and, in the course of their conversations, revealed that she was not shomeres mitzvos.

But then the rabbis did something shocking, at least to a secular psychologist: They relayed that incriminating information to the woman’s husband, with whom she was battling for custody of their children.

The woman took the rabbis to court, claiming a breach of confidentiality. The defendants, in turn, hired Frank Snitow, an Orthodox attorney who has handled numerous high-profile cases in the Jewish community. Snitow argued that although confidential communications to one’s clergyman were not admissible as evidence in court, a clergyman’s revelation of such conversations was not a basis for damages in a civil suit. Professionals like doctors and lawyers, he contended, are governed by state law, which requires them to be licensed and can sanction them for professional misconduct. Or, for that matter, for revealing confidences.

Rabbis, on the other hand, do not derive their right to practice from the state, but from their religion, and thus are not subject to state regulation of their practices. Separately, Mr. Snitow argued that Jewish law required his clients to reveal the wife’s failure to observe religious law to her husband, and thus, invoking a confidentiality requirement would run afoul of the United States Constitution’s guarantee of freedom of religious practice. The case eventually arrived at the Court of Appeals inAlbany, where the state’s highest judges ruled 7-0 in the rabbis’ favor.

Mr. Snitow notes that “Judaism’s rules of confidentiality are, at once, more stringent and more lenient than those of secular law. Thus, the halachah prohibits anyone, not just members of certain professions, from revealing things they’ve been told in confidence. But by the same token, there are circumstances in which one is positively required to reveal private information, such as to prevent a transgression of Jewish law.”

As Orthodox Jews have become ever more active in the broader American society, the number of court cases in which Jewish law plays a role have mushroomed. Only recently, the public has been treated to headlines trumpeting stories like “Chassidic New York City policeman sues to keep his beard,” “City suesWilliamsburgshopkeepers over modesty signs” and “Vigilante tactics used to coerce recalcitrant husbands to divorce their wives.” It sometimes seems as if every other month, yet another high-profile legal episode unfolds in which various aspects of halachah, including some that sound exotic or incomprehensible to the secular ear, take center stage.

In reality, however, halachah and secular law have been interfacing in American courts for as long as there has been a judicial system. At times, in fact, court battles involving halachah have established new precedents in American law itself.

“In this case halachah and secular law differed,” Mr. Snitow adds. “However, these two legal systems often converge. At bottom, with increasingly sophisticated matters implicating civil law and halachah, raised in both secular courts and beis din, it is essential that litigants and their legal representatives be prepared to recognize and utilize both systems of jurisprudence.”

 

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