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G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM VOLUME 258—NO. 97 MONDAY, NOVEMBER 20, 2017 OUTSIDE COUNSEL Expert Analysis When Can State Courts Decide Religious Disputes? en years ago, on Nov. 20, by Grand Rabbi Joel Teitelbaum and 2007, the New York Court reestablished in Brooklyn after World of Appeals issued a signifi- War II. The congregation’s bylaws set cant religion law decision in forth the purpose of the congrega- Matter of Congregation Yetev tion, the functions of the Grand Rabbi, By And TLev D’Satmar v. Kahana, 9 N.Y.3d 282 and issues involving membership in Barry Jonathan (2007), exploring the power of state Black Robert the community. The bylaws provided Nelson courts to resolve religious disputes. for a board of directors and officers The court held that it could not considering initiating a civil suit to preside over the congregation and, decide a controversy over the elec- against any of those parties—first among other things, to assure compli- tion of a religious organization’s lead- must analyze the ability of the courts ance with the congregation’s rules. ers because, to do so, would mean to hear and decide the case under In 1974, the Grand Rabbi expanded that it would improperly intrude into Kahana and its progeny. the Satmar community by establish- matters of religious doctrine. ing a new congregation in Monroe, Since that ruling, other New Counsel for religious institutions, N.Y. Several years later, that congre- York courts have had to determine gation was incorporated in New York clergy, congregations, and whether to apply what is known as as Congregation Yetev Lev D’Satmar individual congregants the “ecclesiastical abstention doc- of Kiryas Joel, Inc. trine” to a wide variety of situations. contemplating filing a lawsuit first In 1979, the Grand Rabbi died. He One thing is very clear from these must analyze the ability of the was succeeded by his nephew, Moses decisions: Counsel for religious insti- courts to hear and decide the case Teitelbaum, who appointed his elder tutions, clergy, congregations, and under ‘Kahana’ and its progeny. son, Aaron Teitelbaum, as chief rabbi individual congregants contemplat- of the Monroe congregation and his ing filing a lawsuit—and attorneys younger son, Zalman Leib Teitelbaum, The Satmar Feud as chief rabbi of the Brooklyn congre- The Kahana case involved Con- gation. When Rabbi Aaron’s support- BARRY BLACK and JONATHAN ROBERT NELSON, gregation Yetev Lev D’Satmar, the ers and Rabbi Zalman’s supporters partners in the Midtown Manhattan offices of the reli- gion law firm Nelson Madden Black, serve the legal religious center of a Hassidic sect of disagreed about who should succeed needs of religious institutions and individuals. They Orthodox Judaism known as Satmar as Grand Rabbi, the Brooklyn congre- can be reached at [email protected] and [email protected], respectively. that was founded in Hungary in 1928 gation split into two rival factions. MONDAY, NOVEMBER 20, 2017 Thereafter, each faction conducted of groups espousing particular doc- had adhered to its own bylaws in mak- separate elections. The first elec- trines or beliefs. ing determinations as to the mem- tion resulted in Berl Friedman being The court added, however, that civ- bership status of individual congre- named president of the congregation, il disputes involving religious parties gants, in this case the congregation’s while the second led to Jacob Kahan or institutions could be adjudicated bylaws conditioned membership “on being named president. without offending the First Amend- religious criteria,” including whether Friedman’s supporters filed an ment as long as “neutral principles of a congregant followed the “ways of action in the Supreme Court, Kings law” were the basis for their resolu- the Torah.” County, seeking an order declaring tion. The “neutral principles of law” Accordingly, the court held, wheth- Kahan’s election null and void. They approach, the court said, required er Friedman had been expelled from claimed that their election had result- a court to apply “objective, well- the congregation “inevitably” called ed in certain members of the congre- established principles of secular law into question religious issues beyond gation, including Friedman, becoming to the issues.” In that regard, it con- any membership criteria found in the duly elected officers; that Kahan’s tinued, courts could rely on internal congregation’s bylaws. With Fried- supporters had illegally attempted documents, such as a congregation’s man’s religious standing within the to remove these duly elected officers bylaws, but “only” if those documents congregation essential to resolution and expel Friedman from member- did “not require interpretation of of the election dispute, the court ship; and that the election of Kahan ecclesiastical doctrine.” ruled, matters of an ecclesiastical and his supporters had violated the In other words, the court explained, nature “clearly” were at issue. The congregation’s bylaws or the N.Y. judicial involvement was permitted issues dividing the parties had to Religious Corporations Law (RCL). when a case could be “decided solely be resolved by the members of the Among other things, Kahan and his upon the application of neutral prin- congregation themselves, and not the supporters challenged the jurisdiction ciples of … law, without reference to courts, the court concluded. of the Supreme Court, arguing that it any religious principle.” ‘Kahana’ and Its Progeny should refrain from interfering in the The court then found that the dis- internal affairs of the congregation. pute between the two Satmar factions Over the past decade, quite a num- The Supreme Court held that it involved issues “beyond mere notice ber of New York courts have had to could not decide the election dis- and quorum challenges,” such as determine the applicability of the pute. The Appellate Division, Second whether Friedman had been removed ecclesiastical abstention doctrine. Department, agreed, and the dispute or expelled from the congregation for Certainly, state courts may not enter- reached the Court of Appeals. rebelling against the authority of the tain a party’s efforts to show that Grand Rabbi and the Grand Rabbi’s a marriage ceremony was invalid The Court’s Decision son and whether Kahan had suc- as a matter of Islamic law, Estate of The court affirmed. ceeded Friedman as president and Weisberg, No. 2012-3470 (Surrogate’s In its decision, the court explained had the authority to conduct the sec- Ct. N.Y. Co. Apr. 21, 2014), or per- that the First Amendment forbids ond election. The court reasoned that mit testimony concerning the tenets civil courts from “interfering in or these “membership issues” were at and principles of the Sikh religion, determining religious disputes” the core of the case and were “an Badesha v. Soch, 136 A.D.3d 1415 because of the “substantial dan- ecclesiastical matter.” (4th Dep’t 2016). Other situations, ger” that the state would become The court added that although however, are more complicated. entangled in essentially religious courts generally had jurisdiction to Defamation: The ecclesiastic controversies or intervene on behalf determine whether a congregation abstention doctrine has arisen in MONDAY, NOVEMBER 20, 2017 defamation cases. In Kaplan v. Khan, Department, affirmed. It found that, and personal property in trust for 31 Misc. 3d 1227(A) (Sup. Ct. Kings Co. with a limited exception, the plain- the benefit of the Episcopal Diocese 2011), a case in which co-author Jona- tiffs’ claims were non-justiciable as of Rochester and the national church than Robert Nelson represented the they could not be resolved based on such that on the parish’s separation defendant pastor, the plaintiff alleged neutral principles of law. Rather, it from the diocese its property revert- that, at a church prayer meeting, the said, resolution would “necessarily” ed back to the diocese or the national defendant had called the plaintiff a involve an “impermissible inquiry church. “whore” and stated that she “ran a into religious doctrine or practice.” The court found nothing in any house of prostitution.” Interestingly, the appellate court deeds, the parish’s certificate of Although the pastor denied that he also decided that, to the extent that incorporation, or the RCL that estab- had used the words alleged by the the plaintiffs alleged that certain lished an express trust in favor of plaintiff, he argued that the words procedural irregularities had marred the diocese or the national church. he had uttered on that occasion the proceeding by which they had The court, however, found that the had been made in “rebuke” during been removed from their positions parish was subject to the diocese’s a religious service and, as a conse- constitution and canons—including quence, that the ecclesiastic absten- With the growing prominence of the trust doctrine in those canons. tion doctrine required dismissal of religious issues here and across Accordingly, it concluded, the par- the complaint. ish held its property in trust for the the country, as well as interna- The court agreed, concluding diocese and the national church. that neither the religious practice tionally, the ecclesiastical ab- Conclusion of rebuke itself nor the pastor’s stention doctrine undoubtedly determination that it was appropri- will play an increasingly impor- Many courts across the country put ate in light of the plaintiff’s alleged tant role in the years to come. their own gloss on the ecclesiastical failure to follow church teachings abstention doctrine, interpreting it could be the subject of inquiry by at the church, those claims “could be somewhat differently in different a civil court. resolved based on neutral principles cases. The U.S. Supreme Court also Governance: Courts often have of law.” The Second Department con- has issued decisions that affect the had to determine whether they could cluded, however, that the plaintiffs application of the doctrine.

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