A Florida state bill targeting a supposed threat from Islamic law may instead end up preventing Orthodox couples from using Jewish religious courts, or batei din, to arbitrate their divorces, according to legal specialists and some Jewish groups.
The Application of Foreign Law in Certain Cases bill is considered likely to pass the Senate before the end of the legislative session on March 9. Observers expect Governor Rick Scott to sign the proposal, which has already passed the Florida House of Representatives, soon afterward.
The bill is part of a wave of legislation against Sharia, or traditional Islamic law, that has swept the nation in recent years. Though many of the bills differ, they are largely styled on model legislation drafted by David Yerushalmi, an Orthodox Jew who lives in New York.
Florida legislators introduced a similar so-called “foreign law” bill last year. That failed because of concerns from business and Christian leaders that it was too broad and could interfere with commercial and church affairs.
The new, more targeted bill specifically applies only to divorce, child support and custody hearings in family court. It states that arbitration is unenforceable if a tribunal bases its ruling on a “foreign law, legal code or system” that does not grant people the same rights as the Florida state or U.S. Constitutions.
The bill’s supporters acknowledge that their proposal is aimed at Muslims. But David Barkey, an Anti-Defamation League attorney specializing in church-state issues, said that the bill will affect Jews. Because only a man can grant his wife a Jewish divorce, or get, Barkey said, a beit din —singlular for batei din — may be seen as violating state and federal equal protection principles, which bar discrimination based on gender.
“Any arbitration or ruling based on such a law is, per se, invalid,” Barkey said.
But Yerushalmi said that courts would not apply the bill to arbitration rulings by batei din because these bodies do nothing to violate constitutional principles.
More than 4,000 Orthodox families live in Florida, according to Agudath Israel of America, an ultra-Orthodox umbrella group.
Michael Helfand, a professor at Pepperdine University’s School of Law, said Orthodox couples routinely use batei din to arbitrate divorces. Once Orthodox couples getting divorced set the terms for their separation, such as child custody and the division of property and assets, they may then petition a civil court to make the beit din ruling a binding judgment.
The ADL fears that state judges will balk at such petitions due to the inherent gender inequality of Jewish religious law on divorce.
Helfand said the ADL is right to be concerned about the Florida bill. But he cautioned that the bill is so confusingly written that its impact on Orthodox couples will become clear only when courts begin to interpret the law.
Eugene Volokh, who teaches church-state relations law at the University of California, Los Angeles’s School of Law, agreed that it is unclear whether Jewish law — or even Sharia — falls under the bill’s definition of a “foreign law, legal code or system of jurisdiction outside” the U.S. Neither of those religious codes conforms to national boundaries, he observed. Instead, Volokh said, the bill could pose more of a threat to immigrant couples that find themselves in family court.
Volokh said family courts often have to examine marriages, divorces and business dealings that took place in countries with laws much different from those of America. He said that if the Florida bill is interpreted broadly, “you have huge problems, because it’s not clear how U.S. courts will be able to properly decide whether a couple was married or divorced properly overseas.”