United States District Court, District of New Jersey
June 14, 1999
SEYMOUR KLAGSBRUN AND JUDITH OSHRY, PLAINTIFFS,
VA'AD HARABONIM OF GREATER MONSEY, MOSES TENDLER, BEREL WEIN, AVROHOM PESSIN, HIRSCH CHAPIER, ALFRED COHEN, AND SHULAMITH KLAGSBRUN, DEFENDANTS.
The opinion of the court was delivered by: Ackerman, District Judge.
This matter comes before the court on defendants' motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(2)
for lack of personal jurisdiction, or in the alternative, for failure to
state a cause of action pursuant to Rule 12(b)(6). The defendants joining
in this motion are the Va'ad Harabonim of Great Monsey ("Va'ad"), Moses
Tendler, Berel Wein, Avrohom Pessin, Hirsch Chapler, and Alfred Cohen.*fn1
For the reasons discussed more fully below, this court will consider
the defendants' motion to dismiss under Rule 12(b)(6) for failure to
state a cause of action as one made pursuant to Rule 12(b)(1) for lack of
subject matter jurisdiction. The court will grant the Rule 12(b)(1)
motion and dismiss the complaint for lack of subject matter
jurisdiction. Accordingly, the defendants' motion to dismiss for lack of
personal jurisdiction is rendered moot.
At the outset, this court notes that the defendants' Rule 12(b)(6)
motion should be viewed more appropriately as one made under Rule
12(b)(1). In substance, they argue that the plaintiffs' defamation action
should be dismissed because it implicates concerns which are
ecclesiastical in nature. Consequently, they argue, the First
Amendment to the Constitution prohibits this court from adjudicating this
matter. Various other courts considering similar issues appear to have
grounded their analyses on whether they had subject matter jurisdiction
over the claim, rather than on whether the plaintiffs claim stated a
viable cause of action. See, e.g., Bell v. Presbyterian Church (U.S.A.),
126 F.3d 328 (4th Cir. 1997); Hutchison v. Thomas, 789 F.2d 392 (6th
Cir. 1986); 40th St. and Fairmount Ave. Church of God v. Stover,
316 F. Supp. 375 (E.D.Pa. 1970).
A motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1) is separate and distinct from one for failure to state a cause
of action under Rule 12(b)(6). See Johnsrud v. Carter, 620 F.2d 29, 32-33
(3d Cir. 1980). A Rule 12(b)(1) motion goes to the court's "`very power
to hear the case.'" Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir.
1997) (quoting Mortensen v. First Federal Sav. and Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977)). A dismissal under Rule 12(b)(6), on
the other hand, is a disposition on the merits, and therefore presumes
the court's power to hear the matter. See Johnsrud, 620 F.2d at 33
(citing Hubicki v. ACF Indus., Inc., 484 F.2d 519, 523 (3d Cir. 1973)).
Accordingly, they should not be confused or used interchangeably. This
court will follow the lead of the other courts cited above and consider
the defendants' present motion, which appears to directly challenge this
court's power to entertain this matter, under Rule 12(b)(1). As one
treatise has acknowledged, Rule 12(b)(1) "like Rule 12(b)(6), . . . is
flexible, often serving as a vehicle for raising various residual
defenses." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1350 (2d ed. 1990 & Supp. 1998). of course, this
court is permitted to consider the defendants' motion, ostensibly filed
pursuant to Rule 12(b)(6), under Rule 12(b)(1). See Oldham v. ACLU Found.
of Tenn., Inc., 849 F. Supp. 611, 613 n. 3 (M.D.Tenn. 1994) (converting
Rule 12(b)(6) motion to Rule 12(b)(1) motion, noting that "a party is not
to be prejudiced for misidentifying a Rule 12(b)(1) motion"); Riddle v.
Trans World Airlines, Inc., 512 F. Supp. 75, 77 (W.D.Mo. 1981).
The present libel and slander action arises from what appears to be a
long and bitter dispute concerning the dissolution of the marriage of
Seymour and Shulamith Klagsbrun. At the heart of the complaint is the
allegation that a flyer or notice circulated by the Va'ad and the
individual defendants defamed the plaintiffs. The Va'ad is an
unincorporated association of Orthodox rabbis who serve a segment of the
Orthodox Jewish community in the greater Monsey/Spring Valley area of
Rockland County, New York, and is comprised, inter alia, of the
individual defendants in this case, with the exception of Shulamith
Klagsbrun. The individual defendants are ordained Orthodox rabbis who
occupied various leadership positions in the Va'ad. At this point, a
brief description of the Va'ad may be helpful.
The Va'ad, as a body comprised of Orthodox rabbis, was designed to
facilitate common practices among its member congregations in the
relatively insulated Orthodox Jewish community in Rockland County.
According to the affidavit of Rabbi Moses Tendler, Orthodox Jewry
presently has no central religious authority. Each synagogue's rabbi,
therefore, acts as the supreme authority for his particular synagogue.
His enforcement power, however, extends only so far as his decrees are
voluntarily accepted by members of his congregation. Because each
Orthodox congregation is independent, the ability of individual rabbis to
maintain and enforce religious standards in matters which affect the
Orthodox community as a whole is quite limited. While the Va'ad
membership does not represent every Orthodox congregation, its members
serve the largest number of Orthodox Jews in the greater Monsey area. As
a body of Orthodox rabbis, the Va'ad's proceedings are
governed exclusively by the Shulchan Arukh, the Code of Jewish law.
The plaintiff Seymour Klagsbrun describes himself in the complaint as
an adherent of the Orthodox Jewish religion. Seymour Klagsbrun and
Shulamith Klagsbrun were married in an Orthodox Jewish ceremony in June,
1957. After nearly thirty years of marriage, Shulamith Klagsbrun obtained
a civil divorce in May, 1995. The defendants contend that in addition to
the civil divorce, Shulamith Klagsbrun sought a religious divorce, or
what is known as a get, from a rabbinical court in conformance with her
religious beliefs. The defendants further contend that a rabbinical court
ordered Mr. Klagsbrun to grant his wife a get. Mr. Klagsbrun, however,
refused to grant a get, which under Jewish law must be given at the free
will of the husband. Mr. Klagsbrun's refusal has precluded Shulamith
Klagsbrun from remarrying in conformity with the tenets of her faith.
Although he never provided a get to Shulamith Klagsbrun, there is no
dispute that Seymour Klagsbrun has remarried. Seymour Klagsbrun
contends, however, that he obtained a special rabbinic dispensation
permitting him to remarry.
In May, 1996, the children of Seymour and Shulamith Klagsbrun
approached Rabbi Hirsch Chapler and informed him that Judith Oshry, a
congregant in his synagogue, was married to their father. Rabbi Chapler,
a defendant in this action, is an ordained Orthodox Rabbi, and since
1989, has been the official rabbi of the Young Israel of Spring Valley,
an Orthodox Jewish congregation in Spring Valley, New York. The children
further informed Rabbi Chapler that Seymour Klagsbrun had not given their
mother a get and allegedly provided the rabbi with various documents from
rabbinic tribunals and individual rabbis confirming this fact. Rabbi
Chapler has stated in his affidavit that he confirmed the authenticity of
one of those documents, and further, that Rabbi Avrohom Pessin, another
defendant in this action, confirmed the validity of the other documents.
Upon receiving this information and reviewing the documents provided by
the children, Rabbi Chapler referred the matter to the Va'ad.
The Va'ad thereafter convened a meeting with Seymour Klagsbrun.
According to Rabbi Chapler, the Va'ad acted as a Beis Din, or a religious
court, when it met with Mr. Klagsbrun. The Beis Din was conducted in
accordance with the requirements of Shulchan Arukh, the Code of Jewish
law for a rabbinic court. The Va'ad informed Seymour Klagsbrun that he
had to either give his wife a get or present evidence that he had
obtained a valid rabbinic dispensation permitting him to remarry. Seymour
Klagsbrun objected and attempted to attack the validity of the prior
rabbinic judgment ordering him to give a get. The Va'ad refused to
reconsider the, prior rabbinic court's judgment, determining that such an
endeavor was beyond its competence. The Va'ad asked Mr. Klagsbrun to
produce the special rabbinic dispensation permitting him to remarry. Mr.
Klagsbrun allegedly refused to do so.
Specifically at issue in this case is a notice, dated June 21, 1996 and
written on the letterhead of "Va'ad Harabonim of Greater Monsey,"
circulated by various members of the Va'ad after Seymour Klagsbrun
refused their entreaties. That notice provides as follows in its
Mr. Seymour Klagsbrun has taken up residence in the
Monsey/Spring Valley community. After numerous
conversations with Mr. Klagsbrun the following facts
are clear to us:
1. Mr. Klagsbrun has never given a Jewish divorce to
his wife Shulamith Klagsbrun.
2. Mr. Klagsbrun has since remarried claiming that he
has the necessary permission from a rabbinical court
to do so
3. Seymour Klagsbrun has refused to tell us the name
of the Rabbi who
performed the marriage with his second wife.
4. Mr. Klagsbrun has refused to show us the claimed
written rabbinic permission allowing him to remarry.
5. The issues between Mr. & Mrs. Klagsbrun were
addressed by a reputable Bais Din which ordered Mr.
Klagsbrun to give a Jewish divorce to his wife. Mr.
Klagsbrun has not complied with the order of that Bais
6. Mr. Klagsbrun has refused to inform us of the name
of his designated representative to a new Bais Din to
adjudicate any outstanding property issues between him
and Mrs. Shulamit [sic] Klagsbrun.
7. Mr. Klagsbrun has repeatedly threatened the Va'ad
Harabonim with the bringing of legal actions in a
civil secular court.
In light of all of the above it is obvious that
Seymour Klagsbrun is not entitled to any honors or
participation in synagogue services and that all
possible social sanctions should be place [sic]
against him until he complies with the orders of Bais
Din and grants a Jewish divorce to his wife, Shulamith
The plaintiffs allege that these statements are false and defamatory.
They allege that as a direct result of these false statements, they have
been shunned by their community.
In support of their motion to dismiss this defamation action, the
defendants argue that this court cannot decide the merits of this case
without engaging in questions of clear theological import, an endeavor,
they argue, which is prohibited by the Establishment Clause of the First
Amendment. Specifically, the defendants contend that the propositions
contained in the notice are religious in nature, and an inquiry into the
truth or falsity of those propositions, they assert, is not a matter for
secular courts under a long line of case law construing the Establishment
The plaintiffs dispute the characterization of their defamation action
as ecclesiastical in nature. While their line of argument is not entirely
clear, it appears to make a distinction between the allegedly defamatory
notice and the "alleged decision by the Defendants that `plaintiff
illicitly entered into a second marriage.'" This case, the plaintiffs
contend, is about the former and not the latter.
Based upon this court's extensive review of the record developed thus
far in this case, the defendants' motion to dismiss based on the
Establishment Clause of the First Amendment is granted.
The First Amendment, in relevant part, provides that "Congress shall
make no law respecting an establishment of religion, or prohibiting the
free exercise thereof. . . ." Elegant in its simplicity, these few words
express a bedrock principle upon which this republic was founded. While
the provision is deceivingly straightforward in language and concept, the
application of both of the religion clauses found in the First Amendment
has been far from an effortless endeavor. The Establishment Clause of the
First Amendment, which is directly relevant to the case at bar,
"affirmatively mandates accommodation, not merely tolerance, of all
religions, and forbids hostility toward any." Lynch v. Donnelly,
465 U.S. 668, 673, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). But as
recognized by the Supreme Court,
no fixed, per se rule can be framed. The Establishment
Clause like the Due Process Clauses is not a precise,
detailed provision in a legal code capable of ready
application. The purpose of the Establishment Clause
"was to state an objective, not to write a statute. . . ."
The line between permissible relationships and
those barred by the Clause can no more be straight and
unwavering than due process can be defined in a single
stroke or phrase or test. The
Clause erects a "blurred, indistinct, and variable
barrier depending on all the circumstances of a
Id. at 678-79, 104 S.Ct. 1355 (citations omitted). Accordingly, First
Amendment jurisprudence has traditionally "call[ed] for line drawing" by
the courts to best effectuate its rather lofty goals. Id. at 678, 104
S.Ct. 1355. The case at bar asks this court to once again attempt to
properly demarcate the boundary between the secular and the
It must be pointed out at this stage that this matter is before this
court under the diversity of citizenship doctrine. See
28 U.S.C. § 1332(a)(1). A federal court sitting in diversity must
apply the substantive law of the forum state, in this case New Jersey. See
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188
(1938); McKenna v. Pacific Rail Serv., 32 F.3d 820, 825 (3d Cir. 1994).
Consequently, this court must apply New Jersey's substantive law to this
action. See, e.g., Scotts African Union Methodist Protestant Church v.
Conference of African Union First Colored Methodist Protestant Church,
98 F.3d 78 (3d Cir. 1996), cert. denied, 519 U.S. 1058, 117 S.Ct. 688,
136 L.Ed.2d 612 (1997).
In the seminal case of Watson v. Jones, 13 Wall. 679, 80 U.S. 679,
728-29, 20 L.Ed. 666 (1871), the Supreme Court cogently stated as
The law knows no heresy, and is committed to the
support of no dogma, the establishment of no sect. The
right to organize voluntary religious associations to
assist in the expression and dissemination of any
religious doctrine, and to create tribunals for the
decision of controverted questions of faith within the
association, and for the ecclesiastical government of
all the individual members, congregations, and
officers within the general association, is
unquestioned. All who unite themselves to such a body
do so with an implied consent to this government, and
are bound to submit to it. But it would be a vain
consent and would lead to the total subversion of such
religious bodies, if anyone aggrieved one of their
decisions could appeal to the secular courts and have
them reversed. It is of the essence of these religious
unions, and of their right to establish tribunals for
the decision of questions arising among themselves,
that those decisions should be binding in all cases of
ecclesiastical cognizance, subject only to such
appeals as the organism itself provides for.
In this vein, the Establishment Clause requires, among other things, that
a law or regulation not foster excessive governmental entanglement with
religion. Excessive entanglement may occur when judicial review of a
claim requires "a searching . . . inquiry into church doctrine." Serbian
Eastern Orthodox Diocese for the United States America and Canada v.
Milivojevich, 426 U.S. 696
, 723, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).
While the First Amendment prohibits excessive entanglement with
religion, it by no means prohibits courts from any involvement in
religious disputes. The Establishment Clause merely prohibits courts from
determining underlying questions of religious doctrine and practice. See
Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U.S. 440
, 449, 89 S.Ct. 601, 21 L.Ed.2d 658
(1969). Accordingly, the question to be resolved in this case is where to
draw the line between the constitutional right to preserve the autonomy
of religious organizations, on the one hand, and the individual's
interest in vindicating secular rights.
In Scotts African Union Methodist Protestant Church, the Court of
Appeals for the Third Circuit addressed a similar question in a case
arising under New Jersey law. In that case, a local church disaffiliated
from a regional administrative body of a religious organization known as
the African Union Methodist Protestant
("AUMP") Church.*fn2 The local church thereafter filed suit seeking a
declaratory judgment that the administrative body held no interest in
property transferred to it by the local church, and that a quitclaim deed
executed by the church's minister was invalid. The defendant
administrative body sought to dismiss the case on grounds that the First
Amendment required the court to give deference to the determinations of
the administrative body, the highest authority in the hierarchical
church. Scotts African Union Methodist Protestant Church, 98 F.3d at 82.
After carefully surveying the applicable authorities, the Third
Circuit, applying New Jersey law, disagreed, and found that New Jersey
courts would apply "neutral principles" to resolve intrachurch disputes,
and not simply defer to the decisions of a religious organization's
highest body. Id. at 94. While the case specifically concerned an
intrachurch property dispute, the Third Circuit made clear that the
neutral principles approach, rather than the deference approach, would
apply without regard to the type of case before the court.*fn3 Id. at
91-92 (determining that recent opinions by New Jersey Supreme Court
instruct that "the appropriate level of review turns not on the type of
civil dispute involved but on the extent to which the dispute implicates
questions of religious doctrine or polity").
Neutral principles "are wholly secular legal rules whose application to
religious parties or disputes does not entail theological or doctrinal
evaluations." Elmora Hebrew Ctr. Inc. v. Fishman, 125 N.J. 404, 414-15,
593 A.2d 725 (1991). Under the neutral principles approach, civil courts
have no jurisdiction over, and no concern with, spiritual matters and the
administration of a religious organization's affairs that do not affect
the civil or property rights of individuals. See Chavis v. Rowe,
93 N.J. 103, 109, 459 A.2d 674 (1983); see also Welter v. Seton Hall
Univ., 128 N.J. 279, 293, 608 A.2d 206 (1992) (determining that courts
should refuse to enforce secular rights "when the underlying dispute
turns on doctrine or polity"). However, temporal matters of a religious
organization affecting civil, contract, or property rights may be
resolved in civil courts. See Chavis, 93 N.J. at 109-110, 459 A.2d 674.
Thus, secular courts may decide civil disputes between a religious body
and its members or its clergy if those disputes involve purely secular
issues and can be resolved without entanglement with matters of faith,
discipline, or doctrine. See F.G. v. MacDonell, 150 N.J. 550, 559,
696 A.2d 697 (1997); Elmora Hebrew Ctr., 125 N.J. at 415-16, 593 A.2d 725
(citing Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 61 L.Ed.2d 775
(1979)). As stated by the court in Kleppinger v. Anglican Catholic
Church, Inc., 314
N.J. Super. 613, 626, 715 A.2d 1033 (Ch. Div. 1998):
[T]he Establishment Clause forbid[s] government
resolution of disputes religious in tenor and
content. This constitutional stricture, however, does
not prohibit judicial involvement in controversies
between religious groups wholly secular in character
such as church property disputes and civil contract
The neutral principles doctrine is grounded in the notion that not
every dispute arising within a religious organization implicates First
Amendment concerns. See Mary Elizabeth Blue Hull Memorial Presbyterian
Church, 393 U.S. at 449, 89 S.Ct. 601. Rather, First Amendment values are
jeopardized when the resolution of the dispute turns on an inquiry into
religious doctrine and practice. Id. Accordingly, the issue in this
case, as far as the First Amendment is concerned, is whether plaintiffs'
defamation claim is ecclesiastical in nature concerning "discipline,
faith, internal organization, or ecclesiastical rule, custom or law,"
Milivojevich, 426 U.S. at 713, 96 S.Ct. 2372, or a "purely secular
dispute between third parties and a particular defendant, albeit a
religiously affiliated organization," General Council on Finance and
Administration of United Methodist Church v. California Superior Court,
439 U.S. 1369
, 1373, 99 S.Ct. 35
, 58 L.Ed.2d 63 (1978).
To determine whether the Establishment Clause prohibits this court from
exercising jurisdiction over this matter, this court must consider the
specific elements of the plaintiffs' claim. As stated by the Third Circuit
in Scotts African Union Methodist Protestant Church, the "extent to which
a court may permissibly inquire into disputes [arising within a religious
organization] turns on the specific elements of the inquiry itself and
the degree to which it might trench upon doctrinally sensitive matters,
rather than on conclusory labeling of the whole dispute as either
`secular' or `ecclesiastical.'" 98 F.3d at 95. Put simply, this court
must determine the nature and extent of the doctrinal relevance
underpinning this dispute. Id.; see, e.g., MacDonell, 150 N.J. at 567,
696 A.2d 697 (remanding for hearing on question of whether clergyman
breached fiduciary duty to parishioner based on statements made during
sermon); Farley v. Wisconsin Evangelical Lutheran Synod, 821 F. Supp. 1286,
1290 (D.Minn. 1993) (noting that "factual scenarios might exist where
resolution of a defamation action against a religious organization would
not require the court to undertake an inquiry in violation of the First
The defendants have argued the plaintiffs' defamation claims would
necessarily implicate ecclesiastical questions concerning the faith,
discipline, rule, custom, or law of their religion. To determine the
truth or falsity of the defendants' statements, they argue, this court
must delve dangerously into questions of doctrine and faith. I agree.
Under New Jersey law,*fn4 "[a] defamatory statement is one that is
false and `injurious to the reputation of another' or exposes another
person to `hatred, contempt or ridicule' or subjects another person to `a
loss of the good will and confidence' in which he or she is held by
others." Romaine v. Kallinger, 109 N.J. 282, 289, 537 A.2d 284 (1988)
(quoting Leers v. Green, 24 N.J. 239, 251, 131 A.2d 781 (1957)). To state
a claim for defamation, a plaintiff must prove the following elements:
(1) a defamatory statement of fact; (2) the defamatory statement
concerned the plaintiff; (3) the statement was false; (4) the statement
was communicated to persons other than the plaintiff; and (5) fault. See
Taj Mahal Travel, Inc.
v. Delta Airlines Inc., 164 F.3d 186, 189 (3d Cir. 1998) (citing Feggans
v. Billington, 291 N.J. Super. 382, 390-91, 677 A.2d 771 (App. Div.
Several other courts presented with defamation claims in the context of
religious disputes have concluded that First Amendment principles
preclude such intrusive inquiries into religious doctrine. For example, in
Farley, plaintiff, who was employed by the defendant as a pastor, was
terminated after the defendant determined that he did not possess the
skills needed to conduct an essential aspect of his employment. The
plaintiff sued for defamation, claiming that the defendant published both
oral and written false and defamatory statements about him during its
attempts to remove him. The federal district court in Minnesota dismissed
the claim for lack of jurisdiction, reasoning that Supreme Court
precedent has consistently interpreted the Establishment Clause to divest
the courts of jurisdiction on matters which would necessitate an inquiry
into a religious organization's activities concerning religious doctrine
or authority. Farley, 821 F. Supp. at 1288. The court therefore held that
resolution of the defamation claim would require the court to review the
defendant's bases for terminating plaintiff and the veracity of the
defendant's statements, both of which were ecclesiastical concerns. Id.
Similarly, in Schoenhals v. Mains, 504 N.W.2d 233 (Minn.Ct.App. 1993),
church members, who had been expelled from their church, brought an
action against the pastor and the church alleging, inter alia,
defamation. The pastor had apparently read a letter to the entire
congregation detailing the reasons for the plaintiffs' expulsion from the
church. That letter set forth the following reasons for the plaintiffs'
expulsion from the church:
1. A lack of financial stewardship with consistency
and faithful tithing and offering over a given period
2. A desire on your part to consistently create
division, animosity and strife in the fellowship.
3. Direct fabrication of lies with the intent to hurt
the reputation and the establishment of Faith
Tabernacle of Truth Church and congregation.
4. Backbiting, railing accusations, division, lying,
are some of the most serious sins found in the Bible.
Where, by all appearances and related conversations,
you have fallen into all of the categories.
Id. at 234. These statements, the defendants contended, were based upon
their interpretation of the Bible, as well as their church's religious
beliefs and practices as expressed in the written Articles of Faith and
By-laws. Id. at 235.
The Minnesota appellate court affirmed the lower court's dismissal of
the defamation cause of action, finding that a determination of the truth
or falsity of the statements, an essential element of a defamation cause
of action, required "an impermissible inquiry into Church doctrine and
discipline. . . ." Id. at 236. Other courts have arrived at the same
conclusion. See, e.g., Hutchison, 789 F.2d at 393 (dismissing defamation
claim for lack of subject matter jurisdiction finding that claim would
necessarily require court to inquire into church doctrine); Black v.
Snyder, 471 N.W.2d 715, 720 (Minn.Ct. App. 1991) (finding that terminated
pastor's claim for defamation would implicate ecclesiastical concern);
McManus v. Taylor, 521 So.2d 449, 451 (La.Ct.App. 1988) (dismissing
minister's defamation claim against church organizations and officials
for lack of subject matter jurisdiction since claim would require court
to "investigate the propriety of proceedings conducted by his church in
the interpretation and application of church rules").
While not entirely clear from the complaint, it appears that the
plaintiffs base their suit on three particular aspects of the notice.
First, they allege that paragraphs 1 and 2 of the notice charge Seymour
Klagsbrun with bigamy, which he
contends is a false statement of fact. Second, the plaintiffs allege
paragraph 5 of the notice, which claims that Seymour Klagsbrun had failed
to comply with an order of a rabbinical court, is also false and
defamatory. And third, the plaintiffs contend that paragraph 6 of the
notice, which charges Seymour Klagsbrun with failing to submit to the
jurisdiction of a rabbinical court, is also false. As discussed below,
these claims, insofar as each presents a distinct claim for defamation,
would require this court to undertake an examination of underlying
religious doctrine or practice. Accordingly, jurisdiction must be
Paragraph 1 of the notice specifically states that "Mr. Klagsbrun has
never given a Jewish divorce to his wife Shulamith Klagsbrun." Paragraph
2 further claims that "Mr. Klagsbrun has since remarried, claiming that
he has the necessary permission from a rabbinical court to do so." The
plaintiffs claim that these two provisions, in concert, charge Seymour
Klagsbrun with bigamy. To make out their claim, the plaintiffs must
prove, inter alia, that the statements made by the defendants concerning
his alleged bigamy were in fact false. To determine whether the
statements were false, however, this court would be required to inquire
into areas of clear ecclesiastical concern. There is no dispute between
the parties that the Klagsbruns received a civil divorce in May, 1995.
The statement concerning Seymour Klagsbrun's alleged bigamy, therefore,
was plainly made in the context of the Orthodox Jewish faith.
Consequently, to ascertain whether the statements were defamatory, this
court must ask whether Seymour Klagsbrun was in fact engaged in bigamy
within the meaning of the Orthodox Jewish faith. For example, this court
would need to inquire into the nature of a get, how and under what
circumstances it may or may not be given, and who has the authority to
grant a get. In addition, this court would also be called upon to inquire
into the nature and propriety of any special dispensation concerning a
person's right to remarry without first giving a get to his wife.
Determining whether the special dispensation Seymour Klagsbrun allegedly
received permitting him to remarry was valid and proper would clearly
involve this court in questions of religious doctrine. This court finds
that an inquiry into the truth or falsity of the defendants' statement
concerning Seymour Klagsbrun's alleged bigamy would entail judicial
intrusion into ecclesiastical doctrine and practice, which is
unquestionably forbidden ground under the First Amendment.
The plaintiffs' claims with respect to paragraphs 5 and 6 of the notice
would also require this court to intrude upon areas of clear
ecclesiastical concern. The complaint charges that the statements
concerning Seymour Klagsbrun's alleged refusal to comply with an order of
a rabbinical court and his alleged refusal to submit to the jurisdiction
of a rabbinical court to resolve his property dispute with Shulamith
Klagsbrun were false and defamatory. The plaintiffs contend in their
complaint that these statements charged Seymour Klagsbrun with violating
two of the most sacred rules in the Orthodox Jewish faith, "the
violations of which are regarded [as] so heinous that shunning is the
prescribed penalty." Complaint at ¶ 16. These defamatory statements,
the plaintiffs allege, caused Seymour Klagsbrun to be shunned by his
It is clear from a review of the plaintiffs' complaint that questions
of religious doctrine permeate throughout this issue. Even if, as the
plaintiffs contend, paragraphs 5 and 6 of the notice were false, this
court would nevertheless be required to evaluate whether failure to
comply with an order of a rabbinical court or failure to submit to the
jurisdiction of a rabbinical court are wrongs or sins within the Orthodox
Jewish faith which lead to the imposition of the punishment of shunning.
No doubt this court would also be called upon to inquire into the rules
governing rabbinical courts as they are utilized in the Orthodox Jewish
religion. The plaintiffs also go to great lengths in their complaint to
challenge the methodology used by the defendants in arriving at their
conclusions. However, inquiry into the methodology of how religious
organizations arrive at their conclusions concerning questions of
religious doctrine are, like the conclusions themselves, beyond the ken
of civil courts. See Scharon v. St. Luke's Episcopal Presbyterian
Hospitals, 929 F.2d 360, 363 (8th Cir. 1991) ("It is not only the
conclusions that may be reached [by the religious organization] which may
impinge on rights guaranteed by the Religion Clauses, but also the very
process of inquiry.").
Indeed, the plaintiffs' entire defamation claim with respect to
paragraphs 5 and 6 of the notice is grounded upon religious doctrine. This
is not a case involving a "purely secular dispute between third parties
and a particular defendant, albeit a religiously affiliated
organization." General Council on Finance and Admin., 439 U.S. at 1373,
99 S.Ct. 35. Rather, the issues raised are uniquely religious in tenor
and content, the resolution of which goes to the very heart of
ecclesiastical concern, including discipline, faith, and religious rule,
custom, and law. See Milivojevich, 426 U.S. at 713, 96 S.Ct. 2372.
The plaintiffs contend that this court would not be required to resolve
competing theological propositions.*fn5 Rather, they argue, this court
need only resolve factual questions of (1) whether Seymour Klagsbrun
engaged in bigamy; (2) whether a rabbinical court had ordered Seymour
Klagsbrun to give Shulamith Klagsbrun a get; and (3) whether Seymour
Klagsbrun has refused to submit to the jurisdiction of a rabbinical
court. The plaintiffs contend that these are questions of fact and not of
competing theological propositions, and thus, do not implicate First
Amendment concerns. I find this line of reasoning to be unpersuasive.
The important point here is that resolution of the factual disputes
would require this court to inquire into religious doctrine and
practice. Simply because, for example, the question of whether Seymour
Klagsbrun actually engaged in bigamy is factual in nature in no way
diminishes the need for this court to delve into religious doctrine. As
noted above, the issue, using just one example, is whether Seymour
Klagsbrun engaged in bigamy within the meaning of the Orthodox Jewish
faith, which by its very nature necessitates an inquiry into religious
doctrine. Also unpersuasive is the apparent premise of the plaintiffs'
argument, that there must be "competing theological propositions" before
the First Amendment is implicated. Rather, the Establishment Clause is
implicated whenever courts must interpret, evaluate, or apply underlying
religious doctrine to resolve disputes involving religious
organizations. Accordingly, the plaintiffs' attempt to distinguish
between issues of fact and those involving "competing theological
propositions" is not well taken.
Because the plaintiffs' defamation claims raise inherently religious
issues, neutral principles cannot be applied to resolve these claims.
They are therefore not properly cognizable in this court, and the
plaintiffs' action will be dismissed for lack of subject matter