Religious Arbitration: How America’s Courts Safeguard the First Amendment by Defending It

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Proxima Studio/
Religious arbitration has been in the news recently and I would like to offer my perspective as a Jew, a rabbi and inter-religious leader who cherishes our Constitution and human rights.

Protection of religious freedom and the sanctity of religion is long-established American tradition. Repeatedly, the Supreme Court has declared that no civil court is empowered to interfere in or interpret doctrinal matters—this being a clear-cut violation of the First Amendment. This past November, an Eleventh Circuit Court decision affirmed and strengthened this tradition by upholding the right of religions to rely on their own internal arbitration to handle church matters.

For Jews, this tradition goes back a lot further — in fact, millennia. Since the third century BCE, Judaism has relied on a legal principle that is so critical, it is doubtful that our religion would have survived without it.

Dina d’malchutah dina, roughly translated “the law of the land is the law,” states that the civil law of any nation in which our people reside must be respected and obeyed — co-equal to, and at times even more so — than our own religious law.

Christians are familiar with this. Addressing the dilemma of the legitimacy of taxes imposed by Roman military occupiers, Jesus answers the question by drawing attention to the fact that the Roman coin bore an image of Caesar: “Render therefore unto Caesar the things which are Caesar’s, and unto God, the things that are God’s,” he advised (KJV, Matt. 22:15-22; Mark 12:13-17).

A man carries a scroll of the Torah, also known as the Jewish Written Law. Photo by John Theodor/
A man carries a scroll of the Torah, also known as the
Jewish Written Law. Photo by John Theodor
While requiring respect for and obedience to over-arching civil law, dina d’malchutah dina also, simultaneously, established a clear separation between civil and religious law and their obligations.

Only with this separation can a religious minority reside in a dominant culture without incurring prosecution or persecution. Only with this separation can there be mutual respect, so both civil and religious law can contribute their respective gifts to society.

Decisions that defend the First Amendment and protect its separation of church and state, from my humble Jewish perspective, are “no brainers.” This ties into arbitration when parties sign contracts pertaining to the exchange of religious knowledge and services and agree, upfront, to religious tribunals, should a need arise to arbitrate any conflicts.

Civil government — except in those situations where extreme religious doctrines might endanger the lives of people, especially defenseless children — must always respect the internal reality, the noumena, of religious conscience.

No civil law can violate the sacred conscience of religion, because each religion has its own sovereignty established under God!

Throughout the centuries the Jewish People have always maintained active and alive religious courts, even in places where Jews were a threatened and persecuted minority. Many disputes — Jew vs. Jew — such as contentious divorces or business lawsuits, were more frequently handled by Jewish courts than by the secular courts.

Today this tradition continues, especially in Orthodox communities. It is common, for example in New York, for religious courts to be recognized by state authorities who accept the validity of their well-considered decisions.

Decisions like those of the Eleventh Circuit and Supreme Courts reaffirm something without which Judaism cannot survive. They reaffirm something without which no religion can survive. If you’d like to see an opposite approach, one won’t have to hunt far to find national courts which do not respect religious rights, and condemn them, often wholesale.

Now, the religious right to our own tribunals cannot be legitimately affirmed without our participation. Our religions must always take responsibility to conduct our internal affairs in a way which is ethical and does not violate individual human rights, nor undermine, to use the phrase in the Constitution, the “common good.”

When courts, exercising their civil authority correctly, recognize the sacred principles of human rights and religious freedom, when religions operate within the civil requirements of our constitutional democracy, the First Amendment is safeguarded and everyone benefits. After all, these rights, as our democracy instructs us, arise from a Higher Authority. They are endowed by the Creator: an Authority greater than either civil courts and particular religious tribunals. This is called humility, another commodity sadly missing in these debates.

So, for those of you who worry about the state of America’s spirit right now — for those of you who wonder whether we will ever get past our cruelty and divisiveness…



Truth has many times reigned in our courts.

For which every single religion must say “Thanks,” and yes, “God Bless America!”