Few constitutional concepts are more firmly entrenched in the American consciousness than the separation of church and state. However, this long-standing notion — that law and religion make improper bedfellows — might seem at odds with the recent controversy over allegations that the National Council of Young Israel threatened to seize assets of a branch synagogue for failure to comply with disputed religious doctrine. That the National Council could, under some circumstances, seize such assets is true. But whether the National Council — or any Jewish organization — should use threats of asset seizure to ensure conformity with controversial conceptions of Jewish law is a very different story.
According to its constitution, the National Council of Young Israel — an umbrella organization for approximately 150 synagogues in the United States — was founded to “foster and maintain a program of spiritual, cultural, social and communal activity towards the advancement and perpetuation of traditional, Torah-true Judaism.” Of course, what constitutes “Torah-true Judaism” is precisely what is currently being debated. The National Council’s constitution requires all branch synagogues to “follow halacha in all dealings by and between the group, its members, its rabbi, its officers and directors ... .” All determinations as to what constitutes halacha — and whether a branch synagogue has violated halacha —are to be made by National Council’s Halacha Committee. Failure to adhere to the Halacha Committee’s interpretation of Jewish law can result in a branch synagogue’s expulsion from the National Council of Young Israel. Importantly, a 2007 promulgation by the Halacha Committee held that having a female serve as president constituted a violation of halacha.
While a distasteful decision to some, nearly all organizations promulgate rules to protect the organization’s fundamental character. The Young Israel controversy, however, is largely a result of two other factors — both of which are now being challenged by a group of Young Israel member synagogues. First, once a branch synagogue is expelled, the National Council’s constitution provides that “all its assets, both personal and real, shall become the property of the [National Council of Young Israel].” Moreover — and here is the kicker — according to the National Council’s attorney, “the National Council’s constitution does not permit a branch ... to resign its membership and affiliation.” To paraphrase Michael Corleone in “The Godfather,” any time a branch tries to get out, the National Council can simply pull it back in.
Whether, as a legal matter, a branch can resign from the National Council — the organization’s constitution neither permits nor prohibits resignation — may very well become a matter of litigation. But what people are surprised to learn is that courts have repeatedly signed off on national religious organizations seizing the assets of a local branch for failure to comply with religious doctrine. In fact, the United States Supreme Court has dealt with such church-seizure cases since the 19th century. These cases have given rise to what is frequently referred to as the “church autonomy doctrine,” which bars courts from reviewing matters of faith, doctrine and church governance.
Now this doctrine may sound like a very good reason for courts not to sign off on attempts to seize assets stemming from doctrinal rifts within a particular religious community. However, when dealing with property disputes in “hierarchical” religious organizations, the Supreme Court has largely adopted an approach of deference to the religious organization’s highest religious body. Thus, “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories ... [courts] must accept such decisions as final, and as binding on them, in their application to the case before them.”
To be sure, this recap of the legal doctrine is a bit too simple. A court need not defer to such religious bodies when the case before it can be decided by “neutral principles of law” — that is, when a court can resolve an intra-church dispute without deciding matters of religious doctrine. Moreover, determining whether a particular Jewish organization is “hierarchical” or “congregational” — a distinction developed within the context of Christian denominations — is no small task and makes a world of difference. But the National Council of Young Israel’s constitution is pretty clear: The highest religious body for matters of Jewish law is the Halacha Committee, the Halacha Committee has barred women from serving as synagogue presidents, and a court ought to defer on matters of religious doctrine to the Halacha Committee so as not to impermissibly wade into religious doctrinal waters. Indeed, it is this very dynamic that has led a number of courts to allow the Episcopal Church to seize the assets of branch congregations when disputes arose over the ordaining of homosexuals to the priesthood.
But what does this all say about the state of discourse within the Orthodox Jewish community over matters of Jewish law? The development — and continued vibrancy — of Jewish law has always depended on the debate between great rabbinic minds over the application of religious doctrine. This environment of debate has ensured the sophistication and nuance of Jewish law by incorporating and engaging a wide range of rabbinic opinions in the process of religious rule-making. Moreover, debates over the application of Jewish law to contemporary problems have ensured that rigorous standards of Jewish legal analysis continue in this technological age. Indeed, few concepts are more central to Jewish law than the enduring quality of “debate for the sake of heaven.”
The thought that such debate within the Young Israel movement — or anywhere, for that matter — would be conducted under the specter of the seizure of assets undermines the very process of Jewish doctrinal development central to Orthodox Judaism. Some branches, in consultation with their own rabbis, have in good faith reached conclusions that stand contrary to the good-faith conclusions of the Halacha Committee. And yet instead of fostering vibrant debate, the National Council — both by prohibiting branches from resigning from the organization over disputes regarding controversial religious doctrine and retaining its constitution’s seizure-of-assets clause — is hurling such synagogues on the horns of a “your assets or your beliefs” dilemma. One wonders whether any movement that resorts to such strong-arm tactics to ensure conformity to disputed promulgations has much of a future. Put simply, just because the law allows it does not mean the National Council should do it. When we as a community replace thoughts with threats, we trade vibrant Orthodoxy for vacuous conformity.
Michael A. Helfand is an associate professor at Pepperdine University School of Law and the associate director of Pepperdine’s Glazer Institute for Jewish Studies.