[NHC] Law and the Law

[magid]

My afternoon class was text heavy, using US court decisions as a way to view the role of Jews in the US. They were edited for length, but otherwise fairly intact (read: with noticeable legalese). The teacher, Stephen Eisdorfer, is a lawyer in NJ.

We started out considering the language of the cases, how the judge seemed to view Judaism, and whether the judge seemed to have any Xtian biases that didn't necessarily translate over.

I tried to find one or two of these cases online, but they're old enough that I couldn't find those, and I stopped looking. I don't know whether they're in LEXIS or some such database.

1. Supreme Court of New Jersey. Jewish Center of Sussex County (Plaintiff) v. Chaim Whale, aka Louis R. Wolfish (Defendant).
   Argued April 7, 1981.
   Decided July 23, 1981.
   The case was brought by the congregation against the rabbi it had recently hired. Part of his resume showed that he had worked in Israel for 7 years, but it turned out that he had been in prison for some of those years, convicted of fraud charges, and been disbarred. The congregation wanted to void the contract (4 months in), and the rabbi said that the congregation should have done due diligence (they didn't check his references). The judge agreed that the rabbi misreprented his history, and that in this case, that constituted equitable fraud. Not only that, but the judge also opined (I get to use "opined!") that while the congregation had not complained about his actual job performance, being a member of the clergy has unique moral and spiritual demands for probity, which could not work in light of his record.
   
   It was interesting that the rabbi in this case persisted to this level, really. After court battles, no matter the substance of them, the relationship isn't going to work. Side note: the congregation is in a less populous part of NJ, which is perhaps why they took this rabbi so quickly, without checking references.
   
   
2. Superior Court of New Jersey, Chancery Division, Bergen County. Brenda Minkin (Plaintiff) v. Barry Minkin (Defendant).
   Decided July 22, 1981.
   The marriage didn't work, and they got divorced. When they married, they got a ketubah, but there was no get given when the civil divorce was decreed. The wife wanted a get, while the husband didn't want to give one; he's no longer religious, and doesn't want to be compelled to perform a religious act/rite*. The other necessary information about this case (which makes it not generalizable): in suing for divorce, he alleged infidelity, but the divorce was granted no fault. The ketubah includes the language "according to the law of Moses and Israel," and according to those laws, if a man accuses his spouse of adultery, he is rquired to give her a get (a wrinkle here: halachically, he is required to give a get only if he accuses her falsely; if he accuses her truly, she earns the death penalty, and the marriage is ended that way. Not that this was actually carried out much at all, btw.). Here, adultery was alleged but not "proven" (as grounds for divorce), so the terms of the ketubah require a get.
   The really interesting part of this decision is how the judge didn't rely on his own knowledge or research, but got expert (read: rabbi) witnesses (and there are even footnotes with information from the Encyclopedia Judaica). The rabbinical testimony is brought on the question of whether compelling the giving of the get violates the husband's First Amendment rights. It's an interesting process, with the discussion of a get being a civil contract (as a ketubah is), which doesn't involve any kind of religious ceremony, nor does the husband have to state any doctrine or acknowledge his Jewishness in any way. The get itself does not include the name of the Deity, and falls into the part of Jewish law regulating human interactions (and is therefore not religious). A reform rabbi is also included (the others were orthodox), who said he'd marry the plaintiff without a get, but acknowledged that the other rabbis were much better Jewish scholars than he. The judge accepted the reasoning about a get being a civil, not religious document, and the ruled that the husband was required to give one.
   
   * Which just makes me want to do very violent things, because really, it's not a big deal for him to do this, and it has huge implications for her. In other words, he's a jerk. (Which might be the result of an unhappy marriage and vituperous divorce, but I don't know any facts about that part of his history. Absent that, he's a jerk.)
   
   We had a lot of discussion of this case, because many people felt that however "civil" a get is, by definition, it is a religious document, pertaining only to Jews.
   
   
3. Superior Court of New Jersey, Law Division. Cabinet v. Shapiro. No. L-889.
   Jan 23, 1952.
   A case about kosher chicken in Atlantic City. The local vaad leafletted against one of the butchers, saying that those who bought at Ben's Poultry Market were bringing traifas and "neveiles" (I'd transliterate it "nevailas") into their homes. It turned out that there was a schochet slaughtering the chickens, but not one approved of by the vaad of Atlantic City. Since the vaad had declared (July 7, 1936) that any meat imported from outside the city or not schechted under their supervision was to be considered traif, they claimed that they were justified in their allegations.
   
   Historical notes: this was a time when fewer people kept kosher, and the local vaad was apparently trying to keep the local butchers already in business. It still bothers me that it would be considered acceptable to declare things traif just because another institution oversaw the shechita. It's the politics of kashrut, rather than the fitness of the food, which is obviously still a big issue today.
   
   
4. Supreme Court of Pennsylvania. Phillips et al, executors of Simon, v. Gratz.
   May Term, 1831.
   This was an appeal from the circuit court about a matter of testifying on Shabbat. There was a case where some necessary papers were being used by another court, and were finally available on Saturday, May 7, 1831. The plaintiff said he had "scruples of conscience against appearing in court to-day, and attending to any secular buiness; and that he believes his presence and aid will be material in the progress of the cause." The judge's reasoning was that one's responsibility was to uphold social duty, that religious obligation could not hold sway in the face of the law of the land, bringing some rather far-fetched examples of the chaos that would result otherwise, and saying that this adherence to law should be sufficient balm to the conscience. The suit was sent back to the circuit court.
   
   Of note: this was a time when there were circuit riders, and it seems from the wording that this Saturday was the last day of the circuit there, which is why there was so much impetus to try the case that day rather than get a continuance. (As it turned out, there was another procedural issue, and the case was set aside for that.) Also, while today this would be a First Amendment case, pre-1940s, the First Amendment was understood to be for federal cases, not states; that Congress shouldn't put religious limits on states.
   
   We talked about the judge's obvious bias in understanding religion (which is to say, he knows his religion, and assumed that others were basically similar enough to rule as he did, without care or concern).
   
   Also, before reading this case, we discussed the halacha that says it is forbidden to bring a Jewish dispute before the secular courts. Before 1950, there was perhaps one case in the secular courts (this one, in which both parties were Jewish), and even until the 1980s, there weren't many.
   
   The judgement we read was one small battle in a legal war between the two parties, who originally been good friends. Gratz' family immigrated in the mid 1700s from Germany, and became a trader with the Native Americans on the frontier (then in Lancaster, PA), and later a sold supplies to the Continental Army. He hired an agent, Joseph Simon, to work for him in Lancaster (which had enough Jewish traders that one of the five synagogues in the US in the early years was in Lancaster). They decided to go in on a land deal, Gratz providing the money and Simon the knowledge of the local people. Gratz married Simon's daughter. Later, there was a falling out about the deal, and they started feuding, which lead to a series of suits from 1767 to 1807, which Gratz won, and of course the other side was upset, and continued to fight... all the way to 1851 (the heirs, at that point, who wanted to just settle the darned thing at that point).
   
   Total side note: apparently there weren't any rabbis in the US until around 1840.
   
   
5. Supreme Court of Pennsylvania. The Commonwealth v. Wolf.
   January, 1817.
   The defendent was accused of having done and performed wordly employment on the Lord's day, commonly called Sunday. The defendant confessed, and alleged that he was a Jew by persuasion*, and claimed that he did not work on his Sabbath. The judge here points out that the breaking of the Sabbath (except for works of necessity and charity) is a crime injurious to society. He goes on to make the case about working on six days and resting on one might be assumed to enjoin working on the six, but he has never heard this interpretation, nore does the Talmud or rabbinical law assert this [see note above: there weren't rabbis around at this time, nor copies of Talmud; where did he get his information?]. He knocks down this straw man, and goes on to say that law cannot be administered unless "people are taught to revere the sanctity of an oath, and look to a future state of rewards and punishments for the deeds of this life. It is of the utmost moment, therefore, that they should be reminded of their religious duties at stated periods; and the laboring part of the community must feel the institution of a day of rest as peculiarly adapted to invigorate their bodies for fresh exertions of activity." And that those who oppose this, out of "mere caprice," are showing their "contempt and abhorrence of the riligous opinions of the great mass of the citizens." The conviction (a fine of $4) was upheld.
   
   Another judge who sees Xtian norms as necessary for society to stand. (He'd surely hate things today!)
   
   * There was a long discussion at one point about how people described being Jewish historically, ranging from a nation (which fell out of favor after 1776) to a race (which fell out of favor in the 1880s; it was used until then because it was assumed that Jews fell on the white side of the divide...), to a variety of other words that don't really cover Jews as a whole (no one was convinced there actually is such a word, when it comes down to it).
   
   
6. Supreme Court of New Jersey. State of New Jersey (Plaintiff) v. Fass (Defendant). No. A-14.
   Argued Sept 13, 1961.
   Decided Nov 6, 1961.
   This is a related case to the previous, where the owner of a store was convicted of doing business on Sunday. Here, however, the defendant claimed that it interefered with his First Amendment right to the exercise of religion, penalizing him for it. The judge discusses the idea that there could be an exemption for those who hold a different day of rest (which some states did have), but acknowledged that there might be reasons that a legislature might not include such exemptions, such as interfering with the "atmosphere of general repose." And it might be considered an unfair advantage to the one open on Sunday, since far fewer establishments are open, therefore the amount of business might be assumed to be greater that that which he lost on the previous day [which doesn't work so well if everyone's sitting around reposing, but ok]. In the end, the judge rules to uphold the law as it is, saying it's a law withing the ambit of the legislative branch.
   
   So, basically, while the legal justifications were more involved, the courts had the same opinion as in the previous case.
   
   I kept on being amused by the name of one of the previous cases cited: Two Guys from Harrison-Allentown, In. v. McGinley, shortened to Two Guys. It stood out in the welter of legalese.
   
   
7. United States Court of Appeals, Sevent Circuit. Moshe Menora et al (Plaintiffs) v. Illinois High School Association et al (Defendants). No. 81-2960
   Argued May 27, 1982.
   Decided June 30, 1982.
   Rehearing and Rehearing En Banc Denied Aug 18, 1982.
   Two Jewish schools decided to compete in the state high school league, in basketball. There was a league rule not allowing hats or headwear, with the exception of headbands no wider than two inches, for safety reasons (if it should come off and someone fall because of it). The schools said that this was an infringement of their religious freedom of expression, since religious Jewish males were required to cover their heads except when (a) unconscious, (b) immersed in water, or (c) in imminent danger of loss of life. The judge did not argue this, going on to point out that the people in question were using yarmulkes attached with bobby pins, which is not a secure way to fasten them, but that the laws dictating head covering do no stipulate yarmulkes and bobby pins. And while no injury had yet resulted from a fallen yarmulke, the idea that they could be a hazard when they fell off had merit. In the end, the judge said that the plaintiffs ought to come up with a more secure method of head covering, at which time the courts could reconsider the case.
   
   Steve saw the judge's opinion, as written, being rather snarky, and mentioned that the judge in question was Jewish. I rather suspect that he did not cover his head with a yamulke much of the time... and certainly not while playing basketball! (I was sitting next to Uel that day, and we traded ideas about how do-rags would have served the purpose admirably.)
   
   
8. Superior Court of Connecticut. Herman Cohen's Petition for Change of Name. File #12082.
   Memorandum Filed Dec 14, 1936.
   The petitioner wanted to change his name from Herman Cohen to Albert Connelly, saying it would be more convenient and advantageious, and he'd already been living as Albert Connelly for more than five years. Once he assumed his new name, it was easier to find work. The judge discussed how this name change would make him appear to be Irish rather than Jewish, which would cause him to lose the respect of Gentil and Jew alike, noting that "Each race has its virtues and faults and men consider these in their relations with one another." So changing his name would be misleading, which the court felt would be disadvantageous to him in the end. He also pointed out that one may change a name at one's whim without court order, but for the court to change it requires a better reason than the one given.
   
   How times have changed; no one cares about name changes (unless one is attempting a glyph...). It was interesting that the guy was living with his family, all of whom retained the name of Cohen.
   
   Side note: there was a study done of the name changes in California in the 1920s and 1930s, and 46% of the changes were by Jews to less Jewish names.
   
   
9. United Stated Court of Appeals, Eighth Circuit. Florey et all v. Sioux Falls School District. No. 79-1277.
   Submitted Sept 11, 1979.
   Decided April 22, 1980.
   Rehearing and Rehearing En Banc Denied May 20, 1980.
   The case is about regligious content in schools, specifically Xmas content, including a "Beginners Xmas Quiz" and the singing of carols, which the plaintiffs alleged were "a predominately religious activity," exceeding constitutional bounds. While holidays that are both religious and secular may be "observed" in public schools, it is possible that this "observations" ends up advancing religion. The judge discusses how it is useful for students to learn about the customs and cultural heritage of the US and other countries, and allows for the presentation of material that has taken on independent meaning from it's religious roots. Interestingly, there's an historical footnote about Xmas carols, and how now they have cultural significance independent of their religious origin (if any), but the Puritans banned them.
   
   
10. United States Court of Appeals, Third Circuit. Tenafly Eruv Association, Inc. et al v. The Borough of Tenafly and the town council. No. 01-3301.
    Argued March 21, 2002.
    Filed Oct 24, 2002.
    A group of Orthodox residents of Tenafly wanted to put up an eruv. They talked with the mayor, who said she did not have the authority to 'rent' the area to them, but she would bring it to the borough council. At that meeting, there was much debate, and there were some outspoken people against putting an eruv up, since it would encourage Orthodox Jews to move to Tenafly. In neither meeting was there a mention that attaching things to utility poles (lechis, in this case) was not allowed by Ordinance 691. The Council decided it needed a written proposal before voting whether to 'rent' the area, and the mayor told them informally that it was unlikely to go through. Frustrated, the eruv committee went to the county executive (whose jurisdiction included Tenafly),a nd asked him for the necessary proclamation, which he gave. Verizon gave permission to attach lechis to the utility poles, and the eruv was finished (wihth help from Cablevision) in Sept 2000. Only private funds have supported and maintained the eruv. The borough officials found out about the eruv just before it was completed. They met, but it was unproductive. On Oct 10, the mayor and council told the borough administrator to ask Cablevision to removie the lechis from the utility poles. The eruv got a reprieve for 30 days to apply for permission from the council. The council held two public hearings, which was divided about equally between supporters and opponents. At the end of the later one, a council member said that he didn't think there was an ordinance banning attaching something to a utility pole. The mayor said that there was, citing Ordinance 691, which was the first time this was mentioned. Ordinance prohibits signs or ads on public property except as authorized by the borough. In practice, the borough has made exceptions on a case by case basis, and a list of some of these were included, such as street numbers, church directional signs, temporary holiday decorations, and more. Also, most private postings (lost animals, etc), were usually undisturbed). Once the ordinance was mentioned, the council unanimously voted to force the removal of the lechis. The eruv sued, seeking an injunction banning interference with the eruv. The judge ruled that the ordinance is neutral, and had the borough enforced it uniformly, the free exercise clause of the First Amendment that the plaintiffs were alleging would have failed. However, the borough has granted exemptions for other secular and religious groups. Therefore, this is a selective, discriminatory application of the ordinance. The borough's assertion that this is for an 'optional' religious practice has no bearing on the case (and leads to questions of religious doctrine, outside the judicial ken.
    
    Of note: the mayor in this case is also Jewish. Tenafly is near other towns that have a large Orthodox population, and it seems clear that there were a number of people in Tenafly who did not want to have Tenafly become similar.
    
    
11. Superior Court of New Jersey, Chancery Division, Family Part, Camden County. Lawrence Burns (Plaintiff) v. Michelle Burns (Defendant).
    Decided Dec 4, 1987.
    Another case of a divorced wife suing to compel her ex to give her a get. In this case, the husband gave a get to his first wife before marrying his second (the defendant in this case). The marriage failed, and a divorce granted in 1982. Since that time, the husband remarried, without giving a get. The wife wanted to remarry but will not until she gets a get. The husband said that his religious beliefs are such that he no longer believed in the necessity of giving a get. But he said that if the wife would invest $25,000 in a trust for their daughter, with himself and someone of his choosing as joint trustees, he would give her the get. The judge used this to say that it wasn't a matter of religious belief for the husband, but of montary gain, using extortion. The judge then cited Minkin v. Minkin (above) [I'm still unsure why this case wasn't just after that one in the source packet.], in justifying how the get is devoid of religious connotation, going on to mention the specifics which make it not a precedent for this case. The judge then cited the Bible and Encylopedia Judaica in understanding the laws of Moses and Israel referred to in the ketubbah, and said that there were a number of reasons why a get might be required in Jewish law. The divorce decree dissolved the civil marriage, but the religious marriage is not as dissolved. However, it is the jurisdiction of the Bet Din, not this court. The judge then required the husband to submit to the jurisdiction of the Bet Din to initiate giving a get, or let him give the get without actually appearing before the Bet Din.
    
    Still not an absolute out for agunot, but much closer to one for extortionist exes. I found it interesting that in the Minkin case, the judge assembled an expert panel to give him expert testimony, while this later judge went out and did his own research.
    
    
12. Supreme Court of Louisiana. Harry Katz et al. v. Gus Singerman et al. No. 45311.
    Feb 15, 1961.
    A case about a synagogue in the parish of Orleans which wanted to institute "family" (ie, mixed) seating. The wrinkle: in 1915, the synagogue had accepted a bequest with the condition that the congregation always continue to worship "according to the orthodox Polish Jewish ritual." [No one deals with the Polish part of this, btw.] In the original case, those not wanting mixed seating brought learned opinions from heavyweights, including one of the chief rabbis of Israel, and the chief rabbi of England. There are opinions on the other side as well, of course. The decision includes a fascinating discussion of the range of Orthodox practice (cited in the spectrum are Orthodox-Conservative, Modern Orthodox, Ultra Orthodox and Uncompromising Orthodox*), the net result of which is to show that there is no one Orthodox practice. There is evidence brought from a number of Orthodox congregations that switched to mixed seating. Given that, the local rabbi's agreement to the switch, and the judge's assumption that the man giving the donation had to have been aware of the fact that religious practice changes, the judge allowed the change to mixed seating.
    
    * Not at all likely to be how the spectrum is viewed today, with Conservative not being included at all, and Ultra Orthodox being a wider description (encompassing the Uncompromising Orthodox).
    
    Of note: this was at a time when the Orthodox community was shrinking, and many congregations switched to mixed seating to be able to compete for congregants.
    
    I still find it completely uncompelling the idea that the donor assumed religion would change. In fact, given his description, it could mean that he was giving this on condition that it didn't change.

There was one more case in the source materials, but we didn't have time for it.

The quick summary of Jews in USian courts: at first Jews were outsiders, though they were trying to be both Jews and Americans (unlike former times in Europe, when Jews were not citizens). Then there is a shift from wholly outsiders to being more part of the culture. Why the change? Both because Jews changed, accepting the idea of being both more fully (and as some Jews assimilated), and because the US changed, along with the idea of who Jews should be. This shift was also paralleled in the 1915 shift from the melting pot idea to cultural pluralism, that people can retain individuality and be a good citizen.

There was a lot to cover in this class, and I rather wish that the sources had been in some more obvious order (since it wasn't chronological or topical). I think it was hard to get through the material with that large a class (15-20 of us, I think), especially since few if any of us had any technical legal background. Still, very interesting food for thought.

Comments

[goldsquare.livejournal.com]

I don't know if this would help you, but may I recommend "How to Read a Judicial Opinion: A Guide for New Law Students." (http://www.volokh.com/posts/1186861601.shtml) by the well-respected Orin Kerr?

The purpose of the essay is to help entering law students understand how to read a legal opinion. It covers what's in a legal opinion, common terms, what to look for, and the role of the case method.

7 pages.

[magid.livejournal.com]

Sounds like it would have been useful before wading through 40-odd pages of court cases. Or maybe as required reading before the class, if the teacher had sent the link out!

[goldsquare.livejournal.com]

Alas: too little, too late. Sorry.

(Perhaps you can share the link with the teacher, see if he knows about it. He might not.)

[mabfan.livejournal.com]

Fascinating. Thank you so much for this report.

[magid.livejournal.com]

If you'd like to read the (edited) cases inside, I'm happy to lend you the source material.

[cellio]

This sounds like an excellent class. I should have prioritized it higher in my list. :-)

[magid.livejournal.com]

I very much enjoyed it, though I think I would've been more focused had it been in the morning slot (I'm more of a morning person). And I think there could've been lots more conversation had we not gone through so many cases (also if a smaller class, of course).