Some Conservative rabbis use (or at least in the past used) ketubot that added the Lieberman clause to the traditional language. See http://www.ritualwell.org/lifecycles/intimacypartnering/Jewishweddingscommitmentceremonies/sitefolder.2005-06-07.5921979856/LiebermanClause.xml
Avitzur enforced such a provision. -----Original Message----- From: religionlaw-boun...@lists.ucla.edu on behalf of Finkelman, Paul <paul.finkel...@albanylaw.edu> Sent: Mon 1/3/2011 10:36 PM To: Law & Religion issues for Law Academics Subject: Avitzur I am in California for AALS and can't dig out Avitzur; but if I recall correctly (and please, someone correct me if i am wrong); but I thought that the case involved in the enforcement of the N Y Get law (which is of dubious constitutionality) which requires a man who is the moving party in a Orthodox of Conservative Jewish divorce to give the wife a get (a Jewish divorce document) and that it is not based on anything in the Ketubah (the Jewish marriage Contract). Please clarify, if you can, or correct me if I am wrong. There is no such thing as "Lieberman" clause in a traditional Ketubah (after all, there were no Liebermans around at the time). So again, perhaps I am misremembering and this was not a traditional Ketubah but some modernized contract ---------------------- Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, NY 12208-3494 518-445-3386 (o) 518-445-3363 (f) www.paulfinkelman.com From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Monday, January 03, 2011 9:23 PM To: Law & Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I think the 1983 New York Court of Appeals decision in Avitzur v. Avitzur, 446 NE2d 136 is relevant to this discussion. There a court enforced the so-called "Lieberman clause" in a Jewish marriage contract (Ketubah) which bound the parties to appear before a Jewish religious court so the wife could obtain a religious divorce once the parties were divorced civilly. The New York court enforced the agreement over Establishment Clause objections, saying: "In short, the relief sought by plaintiff in this action is simply to compel defendant to perform a secular obligation to which he contractually bound himself. In this regard, no doctrinal issue need be passed upon, no implementation of a religious duty is contemplated, and no interference with religious authority will result. Certainly nothing the Beth Din can do would in any way affect the civil divorce. To the extent that an enforceable promise can be found by the application of neutral principles of contract law, plaintiff will have demonstrated entitlement to the relief sought." Howard Friedman -----Original Message----- From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Mon 1/3/2011 6:29 PM To: Law & Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? Eugene writes, " By the way, what do you think about a state university administering a privately funded scholarship for "Christian students"?" Just to clarify your point, Eugene - Is the distinction you are drawing one that distinguishes between government resources being allocated by private decision makers on the basis of religion and a government actor allocating private resources on the basis of religion. So for example - if to avoid overcrowding in the courts, the government financed arbitration panels to resolve contract disputes and the parties agreed to select arbitrators of a particular faith to hear their dispute, that would not be a problem. But if a judge chooses arbitrators based on religious belief who will be paid by the parties (according to the terms of the arbitration clause in their contract), that would create a constitutional problem. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 2:29 PM To: Law & Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I wrote: I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Nathan Oman writes: Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? I don't see a discriminatory legal principle at issue here. But I see a discriminatory decision by a judge: I will not appoint Joe Schmoe as an arbitrator, because he is not Muslim. To be sure, the judge is just enforcing a contract. But he is still a government actor, allocating a particular post based on religion. That he is just doing that in enforcing a contract does not, I think, prevent his discriminatory conduct from being state action. By the way, what do you think about a state university administering a privately funded scholarship for "Christian students"? Eugene
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