Can States Prevent American Courts from Considering Jewish Law?

Back in November 2010, Oklahoma voters utilized a ballot initiative in an attempt to ban courts in their state from considering and applying Islamic law. Though such action might seem absurd, 70% of Oklahoma’s voted in its favor. Not surprisingly, Muslim groups wasted no time in challenging the state’s constitutional amendment in court. After a federal judge issued an injunction against the amendment, state officials filed an appeal with the 10th Circuit.

Although the Oklahoma law is getting much publicity, a number of other states have actually considered similar measures. In a recent example, a Texas state representative proposed an amendment to his state’s constitution that would prevent courts from applying any “religious or cultural law.” (Click here for the story, and here for the text of the amendment.) The language of this bill would undoubtedly include Jewish law.

If passed, the Texas law would prevent courts from enforcing a provision in a will or trust that refers to Jewish law, a shtar heter iska (a document that ensures compliance with the Torah laws of usury), or a ketubah (a document that delineates a husband’s obligations to his wife in accordance with halacha). A number of courts nationwide have in fact ruled on such issues. See, e.g., Gordon v. Gordon, 332 Mass. 197 (1955) (analyzing a will that disinherited children marrying outside of the Jewish faith); Bollag v. Dresdner, 495 N.Y.S.2d 560 (N.Y. City Civ. Ct. 1985) (refusing to award interest because the parties executed a heter iska); Minkin v. Minkin, 180 N.J. Super. 260 (1981) (specifically enforcing the terms of a ketuba). For more examples of American courts citing Jewish law as authority, see Daniel G. Ashburn, Appealing to a Higher Authority?: Jewish Law in American Judicial Opinions, 71 U. Det. Mercy L. Rev. 295 (1994).

Thus, a law prohibiting courts from applying religious law would impair the legal rights of observant Jews and other religious groups. Can Texas do that? The outcome of the Oklahoma case will likely answer this question, and so far, it looks like such laws will be viewed as unconstitutional.

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5 Comments

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5 responses to “Can States Prevent American Courts from Considering Jewish Law?

  1. Pingback: THE BLOG OF THE CENTER FOR JEWISH LAW

  2. Pingback: News & Links | Hirhurim – Torah Musings

  3. United States Constitution, Article I, Section 10: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

  4. Ray

    I am not sure why there would be a problem with the examples you cite even if the law were upheld. In the case of inheritance, you are simply honoring the wishes of the deceased even if those wishes come from religious beliefs. Similarly I would think that contracts could explicitly references Jewish (or Muslim) standards for business. I think the target of these laws is to prevent shariah laws from being imposed on anyone by the courts. This can be a problem in the case of Islam where they normally do not recognize conversion to another faith. This is an area where the secular legal system should be able to override the religious sensibilities.

    • The language of the proposed amendment says: “A court of this state may not enforce, consider, or apply any religious or cultural law.” With such broad language, it is highly likely that a court would refuse to enforce a provision in a document that makes express reference to Jewish law. Although Islam may be the target, Jews would certainly be affected.

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