Supreme Court Emergency Docket Asked to Protect Right to Use Religious Courts

T he use of religious tribunals to settle disputes that might otherwise be heard in civil courts has long been a fault line in systems of civil law. The very structure of Anglo-American law presumes a sometimes-abstruse division between the spheres of law and equity that has roots in medieval England, where the chancery courts (while ruling in the king’s name) were often de facto religious tribunals. In more modern times, when the government’s courts are civil, we see instead controversies arise when litigants want to use the religious courts — or feel compelled by their religious communities to do so.

The federal government nearly went to war with the Latter-day Saints in 1857–58 (in fact, it was an undeclared war in which direct combat was only narrowly averted and there were deaths and the theft and destruction of property on both sides), and one of the major causes was Utah territorial governor and Mormon religious leader Brigham Young routing nearly all civil disputes to religious courts, undermining the authority of the federal courts even over matters such as title to land.

Europe today has serious problems with something similar in areas where Islamic sharia courts effectively rule — especially in situations where those courts’ dictates are carried out by force or deny non-consenting parties uncoerced access to the civil courts. Americans are rightly concerned about such developments. Yet, the First Amendment’s protections for the basic right of religious people to take their cases to religious tribunals — and for those decisions to bind consenting parties — are important elements of religious conscience for Muslims, Jews, and Christians alike, albeit to different extents and concerning different topics.

Now, this hot potato has landed on the Supreme Court’s emergency docket. Justice Sonia Sotomayor ordered Wednesday that a response be filed by Monday, September 28, in Strulovitch v. Bain, a case arising from a collision between the courts of New York State and an Orthodox Jew’s resort to a rabbinical court known as a beis (or beth) din. The dispute is a real one, although whether it belongs on the emergency docket is a closer question, especially because it is embedded in a commercial dispute whose twists and turns are characteristically intricate.

The problem in Strulovitch is the presence of a third party who doesn’t want the dispute decided by the original rabbinical court to hear the dispute, but is nonetheless an Orthodox Jew who cares very much about having a rabbinical court order against him — and who has brought the case to a different rabbinical court. As the emergency application succinctly explains: The applicant “Samuel Strulovitch and Jonathan Bleier disputed ownership of a nursing home in Mount Vernon, New York. . . . Consistent with his faith, Strulovitch, an observant Orthodox Jew, brought that dispute to a beis din in Rockland County in 2022. . . . In April 2024, that beis din issued a brief award stating that Strulovitch held a 22% interest in the nursing home entities . . . Respondent Moshe Bain, who holds a separate ownership interest in the same entities, was not a party to that proceeding.” (Citations omitted.)

Bain protested that this was invalid because it affected his interests without his involvement. He wasn’t trying to completely avoid rabbinical jurisdiction: He brought his own case before yet another rabbinical court, this one in Brooklyn, a fact that suggests some underlying religious turf battles. Bain then got a court order by Westchester judge Linda Jamieson against Strulovitch, having the first beis din award enforced. Next, when Strulovitch had Bain hauled before a second beis din — this one in Brooklyn — for refusing to have their dispute decided by the rabbinical authorities according to Jewish law, Bain not only refused to appear; he got a second temporary restraining order from Jamieson commanding Strulovitch to proceed no further before the beis din. The Brooklyn rabbinical authorities to whom Strulovitch had appealed, however, went ahead without further prompting from Strulovitch and sanctioned Bain for the “chutzpah of enjoining a litigant from pursuing his Halachic [Jewish legal] rights to a Din Torah [adjudication under Jewish law].” That ruling, known as a seruv, can expose Bain to communal sanctions.

Two can play at the chutzpah game. Jamieson declined to sanction Strulovitch, finding that the rabbis had acted of their own accord, but ruled that “unless and until this Court rules otherwise, without . . . an agreement [among all the parties to submit to a rabbinical court], these disputes among the parties shall remain in front of this Court, and this Court only.” Then, the state court went further: “To rectify the potential damage to Bain’s reputation in the religious community resulting from the issuance of the seruv by the Beis Din, Strulovitch must take all steps necessary to have the Beis Din withdraw it, including withdrawing the entire proceeding.” (Emphasis added.)

Strulovitch now argues before the Supreme Court that this latter order violates his religious rights under the First Amendment in two major ways. First, it requires Strulovitch not merely to pause further proceedings before the beis din but to withdraw it entirely, thus denying him his right and obligation under Jewish law to have the dispute resolved by the rabbinical authorities. Second, by commanding him to ask the rabbinical tribunal to withdraw its seruv when he believes it was rightly issued, the state court is commanding him to violate his religious conscience. As the application to the Supreme Court argues: the state court order “affirmatively conscripts him to lobby leaders of his own religion to change their minds on a matter of religious law that he believes they got right . . . at no point in the litigation of this case have Respondents or any court below identified any precedent that would permit a court to order a private citizen to appear before a religious tribunal to advocate against that tribunal’s religious determinations.”

It’s gilding the lily a bit to describe this solely as a religious question, given that it’s fundamentally a dispute about the ownership of a commercial business. But the rabbis’ jurisdiction over that question, and especially their jurisdiction to punish Bain for trying to evade the proper sphere, are both matters of sincere religious belief for Strulovitch.

The order by Jamieson goes further than necessary in trying to “rectify the potential damage” to a litigant’s “reputation in the religious community.” Whether the Supreme Court will find that this is a sufficiently urgent First Amendment violation to warrant emergency relief is another matter. And it’s always hazardous to judge the whole case just on one side’s argument. But the narrow relief of striking that portion of the order seems warranted if one wishes to avoid a collision between the secular and religious courts.