Assumption of an Active Role in Internal Communal Governance and External Communal Representation

Although this phenomenon is worthy of a paper of its own, religious leadership that resolves disputes between parties ultimately serves a role in shaping the community, no differently than judges in any society. What flows from this observation is less of a requirement than a consequence, but any discussion of what happens when judicial structure is introduced into a religious community would be incomplete without it. Religious tribunals, once up and running, begin to assume roles in communal governance; this should seem clear to any who look at a history of Catholic religious tribunals in the United States, which never resolved disputes between Catholic individuals over commercial matters, but focused on church governance matters and ecclesiastical disputes.[1] It is not enough for a faith—or even a legal system—to have rules; it has to have a judicial process (that is, arbitration panels) that applies those rules to the reality it confronts.

When this system is respected by peer religious organizations within the same faith as producing religiously reliable and functionally realistic answers to pressing questions, this adjudicative body becomes the location members of the religious community go to when they have disputes, not just about buying and selling houses or marriage and divorce, but about territorial, jurisprudential, and even theological matters that co-religionists sometimes disagree about. Without this, even members of the same faith, who share an identical vision of the grander questions of community, life, and God, will sometimes fight about the mundanely parochial, and even about the more important issues that can generate institutional conflict.

Dispute resolution for the faithful will resolve not only mundane disputes but also communal disputes. Within the Jewish tradition, this has clearly happened, and it is a consequence of building structure: many religious institutions prefer law to politics as a method of dispute resolution, and if there is a court that shares their religious values, they will use it. This will build a tighter cooperation among the community of the faithful, as the organs of justice will share their religious values. Over time, this gives the community increased structure, stability, and cohesiveness. I expect this to be true not only of particular Jewish law courts, but of a wide variety of religious and values-oriented forums for dispute resolution. The Catholic model in America—which is uniquely hierarchical and thus does not serve as a general precedent for most American faiths—can be built into other faiths as well by this process, but most likely will not.[2]

An increased role within a religious community also entails increased responsibility within the broader society. Secular court recognition of the legitimacy of religious arbitral tribunals presupposes a broad tolerance of legal pluralism, albeit one that accepts the ultimate functional supremacy of one system over all others. Thus, although the American legal system, and American society more generally, is usually accepting of a plurality of private law systems, arbitral awards will be accepted by state judges only when, to use a halakhic aphorism, they stand within the “four cubits of the (secular) law.”[3] Moreover, in working to gain the respect of a secular legal system, it is important for litigants who use faith-based arbitration to be seen as integrated, participating members of the broader secular society so that courts do not view such arbitral tribunals as promoting isolation and factionalism.[4] Arbitration organizations that enforce religio-legal norms must therefore create a system of joint governance in conjunction with secular legal authorities, demonstrating that those who use such tribunals, as well as the tribunals themselves, "jointly belong to more than one community, and will accordingly bear rights and obligations that derive from more than one source of legal authority.”[5]

Membership in more than one community, however, entails more than merely formally recognizing the authority of multiple legal systems; it also entails becoming a genuine participant in multiple social communities.[6] Since 9/11, many attempts have been made to prevent arbitration in accordance with Islamic law due to a pervasive fear of Muslim religious fundamentalism.[7] These measures demonstrate that the level of legal and social legitimacy possessed by faith-based arbitral tribunals is often commensurate with how effective they are at internally governing their respective constituent communities, and with their ability to successfully represent their communities to the broader society.

For this reason, the BDA transformed itself from being just one forum for Jewish law arbitration among a relatively disjointed network of independent batei din operating in America into one of America’s pre-eminent rabbinic authorities. By taking an active role as a source of halakhic rulings and adjudications, the BDA became an important building block in the creation of an internally cohesive and coherent halakhic community in America. The BDA is now viewed by many halakha-observant Jews, as well as by external—including governmental—organizations, as a dependable and just arbitrator whose opinions are regularly upheld by secular courts. As a result of its reputation for resolving disputes in a manner that is predictable, professional, and uncompromisingly adherent to halakha, the BDA is frequently called upon to play a larger role than the sum of its individual arbitrations. Today, the organization performs an important stabilizing function within the Jewish community, and also represents and advocates for that community within the larger society.[8]

The Jewish community as a whole periodically calls upon the BDA to perform such functions. In 2007, for example, the BDA played a prominent role in a nationwide revision and regulation of the process for conversion to Judaism.129 Previously, conversions to Judaism were conducted by individual rabbis on a case-by-case basis, often based on varying halakhic standards.130 The disorganization of that ad hoc conversion process rendered the system susceptible to inconsistency and fraud.131 As a result, the Jewish community turned to the BDA and the Rabbinical Council of America to address this issue. Together, these two organizations developed uniform halakhic standards to govern the conversion process in the United States,132 and created a network of authorized batei din that agreed to follow these procedures and continue to work closely with the BDA to ensure compliance.133 Batei din outside this network continue to follow their own conversion practices,134 and are certainly free to do so within the halakhic system, but for many Jews, the BDA’s work has lent a degree of predictability and consistency to this important process, and allows them to rely on the BDA’s expertise and professionalism in determining which conversions to accept as legally effective.135

  • 129. See RCA and Israeli Chief Rabbinate Announce Historic Conversion Agreement, Ra bbinical Council of America, http://www.rabbis.org/news/article.cfm?id=100905 (last visited Nov. 23, 2011).
  • 130. See Michael J. Broyde, “On Conversion, the True Issue Is Standards,” The Jewish Week, August 2, 2016. http://www.thejewishweek.com/editorial-opinion/opinion/ conversion-true-issue-standards (last visited Jan. 24, 2017).
  • 131. Id. (“Of course, the centralization controversy and the standards controversy are somewhat inter-related. A fully centralized system must have a uniform standard for acceptance and allows much less individualization both by the local rabbi and the local rabbinical court. On the other hand, a decentralized system tends to have more flexible standards with a rabbinical court made up of local communal rabbis who self-validate and who find a level of observance for the convert that reflects the needs of the local community. This approach is more ad hoc and less consistent from case to case.”)
  • 132. See Geirus Policies and Standards Governing the Network of Regional Batei Din for Conversion (Apr. 20, 2007), http://www.judaismconversion.org/geirus-policies-and- standards/.
  • 133. See http://www.judaismconversion.org/ under “About GPS” and http:// www.judaismconversion.org/RCA_Conversion_Network_Recognized.html, which states: “The network accomplishes multiple goals. First and foremost it ensures that its converts will be assured that their status as Jews will not be questioned in the future, whether in Israel or in other major mainstream Orthodox communities. In addition it introduces long overdue standardization and comprehensive record-keeping into the conversion process. The courts follow clearly understood policies and practices. Candidates for conversion will know what to expect and what will be expected of them.”
  • 134. Id. (“In any case an individual rabbi can still elect to do conversions outside of the national network. Such conversions will not automatically come with the endorsement of the RCA. But that is nothing new. The RCA has not previously given blanket endorsements to the conversions of its members.”).
  • 135. See Broyde, supra note 2, at 301 (“Rabbis around the globe would be assured that conversions done through these centrally organized rabbinical courts would not adopting [sic] understandings of Jewish law that fall outside the range of normative accepted halacha. Finally, converts could be confident that their conversions would be

Many organizations outside the Jewish community have also come to recognize the BDA’s prominence as a leading rabbinic authority and representative of the observant Jewish community in America. Following the September 11 attacks on the World Trade Center towers, the City of New York found itself in a quandary with respect to its Jewish community. Among the suspected victims of the attacks were several observant Jews whose deaths could not be confirmed with the certainty required by Jewish law. Without incontrovertible evidentiary support to confirm these individuals’ whereabouts at the time of the attacks, the victims’ wives faced a fate known as iggun:136 they would be unable to remarry.137 In the months following the tragedy, the BDA worked closely with the New York Medical Examiner’s Office to locate and identify fingerprints, dental records, and DNA from the wreckage, in the hopes of compiling sufficient evidence to make a definitive Jewish law ruling regarding the missing. Not only did the medical examiner’s office supply the BDA with daily updates by fax, but members of the BDA were also granted personal access to the office’s files.138 Even representatives of USA Today met with members of the BDA to compare notes on the attacks.139 In the end, the cooperation between the BDA and these other organizations enabled the resolution of each case.

  • [1] Indeed, this is much more part of the mission of the canon law courts than anyother. See, e.g., Code of Canon Law, Vatican, http://www.vatican.va/archive/ENG1104/_INDEX.HTM (last visited Nov. 25, 2014).
  • [2] Because the Catholic model has but one mother church and expects full obedience to it by all of its subsidiaries. This model does not fit the religious ideology of mostAmerican faiths, in that the Catholic Church is so broadly interconnected as a singlewhole church, whereas almost all other American faith groups expect and grant theirlocal communities much more religious, legal, and ideological autonomy.
  • [3] Babylonian Talmud, Berachos 8a.
  • [4] Cf. Helfand, supra note 13, at 1237.
  • [5] Ayelet Shachar, Multicultural Jurisdictions: Cultural Differencesand Women’s Rights 13 &, n.12 (2001).
  • [6] Joel A. Nichols, Religion, Marriage, and Pluralism, 25 Emory Int’l L. Rev. 967,970-71 (2011).
  • [7] See Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) (holding that a proposedamendment to the Oklahoma Constitution forbidding courts from considering Shariaviolates the First Amendment).
  • [8] See Broyde, supra note 2, at 301.
 
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