Friday, October 10, 2008

Judicial Mischief

The Judaism-is-racism canard has been resurrected in a far less virulent form by judges in Cook County, Illinois, in a case involving a contested estate which demonstrates once more that at times the two most dishonest words in the English language are “Your Honor” when spoken in a courtroom before a black-robed figure sitting on a high bench. The case also demonstrates how religious issues constantly crop up in the public square, as well as how those who are hostile to religion contrive new arguments seeking to portray religious commitment as antithetical to democratic and humane values. In the process, bitter divisions in American life are exacerbated.

The case involves trusts established by Max Feinberg who died in 1986 and his wife who died in 2003. According to the opinion of an appellate Cook County court, they left “considerable assets” in their estate, a circumstance that doubtlessly has contributed significantly to the complex and nasty litigation involving their descendants. I imagine that when the legal skirmishes run their course, what will remain will be considerably less than it was originally because the squads of lawyers will make sure to feast well off the carcass of the estate.

Max Feinberg included in his trust a “Jewish clause” which stipulated that “a descendant of mine other than a child of mine who marries outside of the Jewish faith (unless the spouse of such a descendant has converted or converts within one year of the marriage to the Jewish faith), his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.”

The Feinbergs were survived by two children and five grandchildren. All but one of the latter had married a person who is not Jewish, a demographic distribution that I believe is far more common in American Jewish life than is generally recognized. For understandable reasons, certain of the grandchildren are contesting the Jewish clause. In fact, the case involves a host of other issues, including claims of misappropriation of millions of dollars and fraud. As a necessary preliminary question, the trial court ruled on the anti-intermarriage provision, the decision being that it is invalid. In an interlocutory appeal, the appellate court recently ruled 2-1 that “such a provision is not enforceable because it is contrary to public policy.”

The decision is startling because it runs squarely counter to the sensible notion that unless bequests or trusts clearly violate a societal norm, great latitude must be given to those whose money it was and who left instructions about how what they earned should be dispersed. The judicial landscape is unfortunately occupied by judges who are determined to make law and public policy fit their prejudiced notions of what is appropriate. The majority ruled that “the provision’s clear intent was to influence the marriage of Max’s grandchildren based on a religious criterion and thus to discourage marriage by the grandchildren other than to those of the Jewish faith.”

It is unclear why this is against public policy. What is clear is that the majority distorted the facts since the trust kicked in after Mrs. Feinberg’s death, by which time the grandchildren had all married and their future behavior was not affected by the Jewish clause. Furthermore, the decision is counter to what has been regarded as settled law since 1975 when the Ohio Supreme Court upheld a similar provision in a case referred to as Shapira.

Because the main opinion invalidated the clause on public policy grounds, it did not decide whether it was also invalid on constitutional grounds, they being the notion that a clause promoting religious in-marriage is akin to the notorious restrictive covenants and other by now invalidated legal arrangements that promote racism. This astonishing argument was made in a concurrent opinion that mocks the assertion by the dissenting judge that the Feinbergs strove “to preserve their 4,000-year-old heritage,” saying that this position “could just as well result in the courts being required to enforce the worst bigotry imaginable.”

We Jews have a great deal of close knowledge of “the worst bigotry imaginable.” It is bad enough that a judge cannot see the distinction between actions, legal or other, whose intent is overtly racist by being specifically directed against Blacks and actions whose sole intent is to promote Jewish continuity. To refer to this as the worst bigotry imaginable is an obscenity and it is made more obscene by its being asserted by a person who speaks in the name of the law.

Admittedly, similar assertions have been made by our enemies. The implications of this concurring opinion and even the majority opinion are enormous. We need only consider that within organized American Jewish life, which obviously encompasses in the main persons who are not Orthodox, there is a broad consensus that intermarriage should be discouraged. Is this bigotry? Indeed, what the Feinbergs attempted to do was rather benign when compared with pro in-marriage rhetoric and activities that abound in our communal life.

Because the Feinberg ruling is interlocutory, essentially meaning that it is an intermediate decision on a legal point that is vital to the continuing course of the litigation, I am not certain whether it can – or will – be appealed. It is likely that at least down the road the case will reach the Illinois Supreme Court. If the intermarriage issue is still relevant at that point, hopefully our organizations will bestir themselves and become involved. This isn’t likely, if only because the marital course taken by four of the five Feinberg grandchildren coincides with marital decisions being made in many American Jewish families.