Tilsen v. Benson
| Decision Date | 07 November 2019 |
| Docket Number | NNHFA186084187S |
| Court | Connecticut Superior Court |
| Parties | Jon-Jay Tilsen v. Miriam E. Benson |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Klau, Daniel J., J.
The plaintiff seeks to enforce a Jewish marriage contract, known as a "Ketubah," contending that it is a valid prenuptial agreement. In relevant part, the Ketubah states that the parties "agreed to divorce (or, separate from) one another according to custom all the days of their life (i.e., as a continuing obligation) according to Torah law as in the manner of Jewish people ." (Emphasis added.) The plaintiff argues that "Torah law" mandates a 50/50 division of property and relieves him of any obligation to pay alimony to his wife of nearly thirty years. See Plaintiff’s Memorandum of Law in Support of Motion for Enforcement of the Parties’ Prenuptial Agreement (dated April 30, 2019), p. 16. The defendant disagrees and generally contests the validity of the Ketubah as a prenuptial agreement.
This memorandum of decision addresses a narrow yet dispositive issue: Assuming, without deciding, that the Ketubah is otherwise a valid prenuptial agreement under Connecticut law does the first amendment to the United States constitution nonetheless forbid the court to enforce the cited provision? For the following reasons, the court answers that question in the affirmative.[1]
The parties married on December 3, 1989, in a ceremony conducted in accordance with Jewish tradition. Shortly before the marriage ceremony the parties signed their Ketubah— a traditional Jewish marriage contract written in Hebrew and Aramaic. Solely for the purposes of this ruling, the court accepts as accurate the plaintiff’s English translation.
As noted, the Ketubah states that the parties agreed to divorce "according to Torah law ..." It further provides that the parties "agreed to accept upon themselves the Rabbinic Court [the Beit Din of the Rabbinical Assembly] to instruct them in the terms of Torah law ... [and to] respond to the summons of the other to appear before above-referenced Rabbinic Court, or one mutually agreed upon, to the end that both of them can live in compliance with Torah law all the days of their lives."
The plaintiff’s Second Amended Complaint requests enforcement of the Ketubah as a premarital agreement. See Second Amended Complaint (dated February 28, 2019), Claims for Relief, ¶D. By way of answer and reply, he defendant acknowledged the existence of the Ketubah, but denied that it was valid premarital agreement. See Defendant’s Answer and Reply to Plaintiff’s Second Amended Complaint, In 2-3.
On April 30, 2019, the plaintiff filed a motion (#116.00) to enforce the Ketubah. He also moved to bifurcate the hearing on the enforceability of the Ketubah from the dissolution trial. The defendant objected to bifurcation, and the parties appeared before the court on May 30, 2019, for oral argument on that issue.
During the argument, it became apparent that a trial on the validity and interpretation of the Ketubah would involve competing expert rabbinical testimony. That is, the court would have to choose between competing interpretations of the Ketubah’s requirement that the parties’ divorce should accord with "Torah law." The court invited the parties to submit briefs addressing the first amendment implications, if any, of having the court make that choice. The court heard oral argument addressing the first amendment issues on July 19, 2019.
The first amendment to the United States constitution provides, in pertinent part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." U.S. Const., amend. I. These clauses are referred to as the Establishment and Free Exercise clauses. They are applicable to the states through the fourteenth amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). In general terms, the Establishment Clause bars the federal and state governments from placing their official support behind a religion, while the Free Exercise Clause bars them from interfering with the religious practices of their citizens. Significantly, the first amendment applies not only to legislative and executive acts, but also to the judicial resolution of private disputes. Cf. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (judicial enforcement of private agreement constitutes state action subject to constitutional scrutiny).
The first amendment bars the federal and state governments, courts included, from actions that "foster an excessive government entanglement with religion." Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). See also Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 671, 994 A.2d 212 (2010) (). However, the constitutional proscription against judicial entanglement with religion does not prohibit courts from adjudicating a dispute just because it happens to involve a religious institution, party or document. The challenge is to determine whether adjudication of a particular dispute would, in fact, excessively entangle a court with religious matters, in violation of the first amendment.
In a series of cases dating back to the 1870s, the United States Supreme Court addressed this challenge in cases involving disputes over church property. See Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 696, 49 L.Ed.2d 151 (1976); Maryland & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970); Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed. 658 (1969); Watson v. Jones, 13 Wall. 679 (1872). In Jones v. Wolf, supra, the Supreme Court adopted the "neutral principles of law" approach ("neutral-principles approach"). Describing the neutral principles approach is fairly straightforward; properly applying it in the context of particular cases is not.
(Citations omitted.) Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 674. "Under Jones v. Wolf in deciding secular questions arising out of concepts of property and trust law, civil courts may not only examine the deeds of conveyance or of trust but may also scrutinize certain religious documents, such as a church constitution, for language of trust in favor of the general church." New York Annual Conference of the United Methodist Church et al. v. Everett Fisher et al., 182 Conn. 272, 282-83, 438 A.2d 62 (1980), abrogated on other grounds by Episcopal Church in Diocese of Connecticut v. Gauss, 302 Conn. 408, 28 A.3d 302 (2011). However, "[i]n undertaking such an examination [of religious documents], a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining" the parties’ intentions. (Emphasis added.) Jones v. Wolf, supra, 443 U.S. 604.
In short, the first amendment permits court to resolve disputes involving religious institutions, parties or documents if, but only if, the court can do so by applying traditional secular legal principles and without delving into and deciding controverted matters of religious law, doctrine, practice or faith. If the first amendment means anything, it means that courts cannot "take sides" in inherently religious disputes.
Although the neutral principles approach developed out of church property disputes, courts have applied it in other contexts, including employment, torts and business contract disputes. See Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 674; Decorso v. Watchtower Bible and Tract Society of New York, Inc. et al., 78 Conn.App. 865, 877, 829 A.2d 38 (2003) ("[u]nder ‘excessive entanglement’ analysis, civil tort claims requiring courts to review and to interpret religious doctrine and practices are barred by the first amendment").
The neutral principles approach also extends to the type of private agreement at issue in this case, to wit, religious marriage agreements. The cases involving such contracts fall loosely into three general categories: (1) Islamic marriage contracts obligating the husband to pay a specific sum of money to a spouse (the "mahr" cases); (2) Jewish marriage contracts requiring a husband to grant a wife a religious divorce (the "Get" cases); and (3) Jewish marriage contracts requiring the...
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