What Is Jewish Law? A Conceptual View from U.S. Courts

Abstract

By and large, United States courts treat Jewish law—and the obligations Jewish law generates for its adherent—as religion. That Jewish law has made recurring appearances in U.S. courts is far from surprising. Jews and Jewish communities have been features of American life since before the founding. Courts have been most clear when Jewish law and legal obligation have been implicated in cases with underlying public law considerations. This sort of conception of Judaism and Jewishness solely through the prism of religion is deeply modern. While this unremarkable underlying assumption—that Jewish practices qualify as religion—remains consistent in the high-profile landscape of religious liberty litigation, it also has significant consequences for how U.S. courts treat—and don’t treat—Jewish law. The underlying assumption is that the Establishment Clause has prohibited—and continues to prohibit—courts from interrogating the content of Jewish law; and to the extent a dispute requires that sort of inquiry, a court must dismiss the case pursuant to the religious question doctrine. Detail is provided on two strategic alternatives pursued by litigants. The first is to leverage the neutral principles of law framework, which aims to identify alternative methods to resolve religious disputes that focus solely on “objective, well-established concepts of . . . law familiar to lawyers and judges.” The second is what I term the reclassification strategy, which refers to attempts by litigants to rebrand Jewish law as something other than religion—whether it be law or history or sociology. Of these strategies, the first is sometimes successful, albeit infrequently; the second has, for all intent and purposes, been rejected by courts. And together, the judicial reaction to such strategies demonstrates the powerful consequences of treating Jewish law as religion—and therefore subject to the religious question doctrine. Given the current jurisprudential trajectory, Jewish law is and will likely continue to be treated as religion whether it be for religious liberty protections under the First Amendment or for purposes of contract interpretation. And all told, Jewish law as a concept—with its multifarious doctrines and disputes—will remain a black box to the American legal system.

Keywords: Jewish law, Judaism, religion, religious liberty, Establishment Clause, religious question doctrine, First Amendment