Here’s a pdf of the dispute (YAAKOV ABDELHAK suing The Jewish Press):
Here’s an excerpt:
Plaintiff is a physician specializing in high risk
obstetrics, whose patients are, almost without exception, women
of the Orthodox Jewish faith. Plaintiff is a practicing
Orthodox Jew and was raised as such by his parents. Plaintiff’s
father was an ordained Orthodox rabbi.
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In August 2004, defendant Tito, who was plaintiff’s wife,
instituted divorce proceedings and informed him that she would
seek custody of their two daughters and did not intend to honor
her earlier promise to raise the children as Orthodox Jews.
Although Tito had renounced the tenets of Orthodox Judaism, she
nonetheless demanded that plaintiff provide her with a Get,
which is a religious divorce granted by a husband to a wife.
Unless granted a Get, an observant Orthodox Jewish woman is not
free to marry again; a civil divorce is not sufficient.
Moreover, children born of any subsequent marriage are deemed to
have been born out of wedlock and bear a considerable stigma
among Orthodox Jews. Based on advice and counsel purportedly
issued to plaintiff by his spiritual adviser, Rabbi Rudinsky,
plaintiff took the position that so long as Tito continued to
refuse to raise their children in the Orthodox tradition, he was
not obliged to grant her a Get.
While the divorce proceedings were pending in the Family
Part, plaintiff’s and Tito’s rabbi, Aharon Ciment, of
Congregation Arzei Darom in Teaneck, provided testimony at a
deposition that was favorable to Tito. Rabbi Ciment’s
deposition testimony caused a deep schism in the congregation,
with some congregants supporting him and others, including
plaintiff, insisting that Ciment’s contract not be renewed.
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Defendants Rivkin and Scharlat became ardent supporters of
Ciment. At a meeting of several members of the congregation
that Rivkin hosted, he and Scharlat vowed to “destroy
[plaintiff] socially and professionally” unless plaintiff ceased
his criticism of Ciment. Rivkin also commented he would see to
it that plaintiff would never be able to remarry, promising to
send letters to the Orthodox community stating that plaintiff
was unworthy and attacking his character. Rivkin’s and
Scharlat’s antipathy to plaintiff grew so intense that the
Temple’s board of directors was forced to convene a special
meeting in December 2005 to “formulate the Board’s response to a
campaign that is going on to slander [plaintiff].” Ultimately,
the Board requested Rivkin to cease “his methodical campaign of
lashon harah1 against [plaintiff].”
Rather than refrain from further activity, as the Board had
requested, Rivkin, as well as Scharlat, intensified their
involvement in the dispute between plaintiff and defendant Tito
over whether plaintiff would provide her with a Get absent her
agreement to raise their children as Orthodox Jews. On January
12, 2006, they presented the Board with a “Confidential
Memorandum” requesting that the Board discuss “the continuing
refusal by [plaintiff] to give a Get to his wife . . . despite
1 This Hebrew term translates as “using insults.”
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her repeated requests.” Defendants Rivkin and Scharlat further
asked the Board to “consider the implications of this continuing
refusal . . . in connection with [plaintiff’s] continuing rights
and status as a member of this congregation.” Defendant Rivkin
also initiated a conversation with defendant Tito’s divorce
attorney, in which he discussed possible witnesses. For his
part, defendant Scharlat contacted Rabbi Rudinsky in an attempt
to verify whether the Rabbi had, as plaintiff claimed, advised
plaintiff that defendant Tito’s repudiation of Orthodox Judaism
justified plaintiff’s refusal to provide a Get.
As a result of plaintiff’s resistance to providing
defendant Tito a Get, she instituted a proceeding before the
Bais Din2 of America (BDA). By its ruling of July 28, 2006, the
BDA ordered plaintiff to “give a Get immediately” and “without
delay.”
Shortly thereafter, defendant Tito contacted The Jewish
Press, a newspaper that bills itself as the “largest independent
weekly Jewish newspaper in the United States.” The Jewish Press
champions the cause of women whose husbands refuse to provide a
2 Also known as a Beth Din or a Beit Din, the Bais Din is a
rabbinical court composed of a minimum of three rabbis who are
authorized to pass upon questions of Jewish law and practice
presented to them.
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Get by listing such men’s names on its Seruv list.3 The Seruv
list is designed to publicly shame such recalcitrant husbands
into providing the requested Get.
Upon being notified by defendant Tito that plaintiff was in
contempt of the Bais Din for his refusal to provide her a Get,
The Jewish Press contacted the BDA to verify Tito’s claim.
Rather than seek written confirmation from the BDA, The Jewish
Press telephoned the BDA and spoke to an unnamed staff member
who confirmed, erroneously, that a Seruv order of contempt had
been issued, when in fact the BDA had merely directed plaintiff
to provide the Get immediately.
Upon receiving the supposed confirmation that a Seruv had
been issued, The Jewish Press, in its September 6, 2006 print
edition, listed plaintiff’s name in its regular column entitled
“Seruv Listing.” Specifically, the “Seruv Listing” falsely
stated that a Seruv had been issued by the BDA against “Dr.
Yaakov Abdelhak, of Teaneck, N.J.” in August 2006. Of the ten
individuals listed in the September 6, 2006 Seruv Listing in The
3 A Seruv is an order of contempt issued by a Bais Din, a
rabbinical court, to a husband who refuses to comply with the
order of the Bais Din to give his wife a Get. A person issued a
Seruv is known as a mesarev ledin. Such person must be shunned
by all Orthodox Jews. He is also forbidden from reading the
Torah aloud during religious ceremonies, from being called to
the pulpit as an honor, from participating in any form of prayer
gathering, and from being buried in an Orthodox Jewish cemetery.
The word Seruv is spelled alternately in the record as Siruv.
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Jewish Press, plaintiff was the only person whose professional
title was included, even though one other doctor and a lawyer
were also on the list.
Three days later, plaintiff was advised by Rabbi Rudinsky,
for the first time, that he should provide defendant Tito with a
Get. The next day, September 10, 2006, plaintiff did so.
On September 15, 2006, after plaintiff notified The Jewish
Press of its error and advised the newspaper that no Seruv had
been issued against him, The Jewish Press issued a retraction in
its print version on September 15, 2006, blaming the error on
misinformation provided by the BDA. The retraction notice added
that “we also note that on Sunday, September 10, 2006,
Dr. Abdelhak gave his wife a Get.4
On November 29, 2006, plaintiff filed a nine-count
complaint in the Law Division against The Jewish Press, Rivkin,
Scharlat and Tito alleging defamation, invasion of privacy, and
intentional infliction of emotional distress arising from their
roles in the false Seruv Listing published by The Jewish Press
on September 6, 2006.
4 The Jewish Press also published a retraction on its website.
The retraction did not include the announcement contained in the
print version that plaintiff had given his wife a Get.
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As a result of plaintiff filing a complaint and seeking a
remedy in a secular court, a different Bais Din, the Mechon
L’Hoyroa (MLH), issued a Seruv against plaintiff on March 13,
2008 for refusing to resolve his grievance against Scharlat, an
Orthodox Jew, in the Bais Din “after [receiving] several
summonses” issued on Scharlat’s behalf by that religious body.
The Seruv labeled plaintiff a “Mesarev Lavo L’Din” because his
“conduct violate[ed] Jewish law” by “willfully declinin[g] to
appear in front of Jewish courts.” The Seruv document commanded
the Orthodox Jewish community to “treat[] [plaintiff] in the
manner specified by Rabbi Moshe Isserless (Rama) in Shulchan
Aruch Choshen Mishpat 26:1.” The March 13, 2008 Seruv has never
been rescinded or withdrawn.
In October 2008, all defendants filed motions to dismiss
for lack of subject matter jurisdiction, asserting that the
resolution of plaintiff’s complaint would entail excessive
entanglement of the court into religious affairs and practices.
On November 7, 2008, after oral argument, Judge Miller rendered
a lengthy decision, supplemented by a written opinion, granting
defendants’ motions to dismiss. A confirming order was issued
the same day.
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In particular, the judge observed that the proofs to be
presented by plaintiff at trial must be examined to determine
whether the jury’s task
would require excessive procedural or
substantive interference with church
operations. If the answer to either of
these inquiries is in the affirmative, then
the dispute is truly of a religious nature,
rather than theoretically and tangentially
touching upon religion, and the claim is
barred from secular court review.
Judge Miller found that adjudication of plaintiff’s claims would
require the court and jury to make no less than eleven
determinations regarding questions grounded in religious
doctrine:
1. the nature of a Seruv
2. whether [plaintiff’s] indifference to
the MLH Seruv indicates that it does
not hurt his reputation in the eyes of
Jews.
3. the difference in the alleged damage
to [plaintiff’s] reputation being called
a Mesarev Ledin by the MLH as compared
to the BDA.
4. the effect of being classified as a
Mesarev Ledin.
5. whether the publication of [plaintiff’s]
name in the Seruv Listing made the
followers of Orthodox Judaism in his
community shun him socially and
professionally.
6. whether Jewish women are not comfortable
using a male obstetrician who is not
married.
7. the significance of a husband withholding
or giving a Get.
8. was the plaintiff justified in withholding
a Get from defendant Ms. Tito.
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9. whether Scharlat was justified in
forwarding the Beth Din of America’s
July 28, 2006 letter decision to the
Jewish Press.
10. whether plaintiff withholding and
later giving the Get involves a matter
of legitimate interest within the
Orthodox Jewish community.
11. would a reasonable observant Orthodox
Jew experience extreme emotional
distress as a result of his name being
included in a Seruv.
The judge reasoned:
[A]lthough plaintiff has purportedly
asserted claims secular in nature, the
adjudication of such claims would require
this [c]ourt to determine issues of
religious doctrine in violation of the
Establishment Clause. . . .
. . . .
Specifically, for the defamation
claims, the [c]ourt would be required to
ascertain the difference between the MLH
Seruv and the initial Jewish Press Seruv
listing and how such are considered within
the Orthodox Jewish community. . . . [T]he
case is similar to Klagsbrun [v. Va’ad
Harabonim of Greater Monsey, 53 F. Supp. 2d
732 (D.N.J. 1999), aff’d, 263 F.3d 158
(3d Cir. 2001)], in that plaintiff’s claims
. . . are all rooted in claims of plaintiff
that deal with religious shunning as a
result of a Seruv. . . . The Orthodox
Jewish community is a closed community and
claims and remedies are rooted on
pronouncements within that community as
reflected by the Bais Din, and grounded in
religious doctrine and having a defined
meaning only within the Orthodox Jewish
faith.
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Likewise, the invasion of privacy
claims would also require this Court to
engage in an analysis of how a Seruv listing
is viewed within the Jewish faith and
whether it would be considered “highly
offensive to a reasonable person,” here
members of the Orthodox Jewish community, to
be accused of withholding a Get.
. . . .
While there are no shortage of Rabbis
for a Court and jury, the need for such
shows the excessive entanglement of the
“core ecclesiastical issues” in this case
which requires the Court to dismiss under
the Establishment Clause. Moreover, the
court also notes that a determination of why
the plaintiff’s medical practice allegedly
was damaged may rest not only on the issue
of the Seruv listing, but also the fact that
plaintiff is an unmarried man, with an
exclusive clientele for Orthodox Jewish
women, from an Orthodox Jewish community,
and their mores.
Consequently, only through excessive
entanglement with the Jewish faith,
doctrine and practice would such a
determination be possible. Such a
determination is inherently religious, and
while there may be some secular
ramifications in this ecclesiastical matter,
as there are in most ecclesiastical matters,
the “heart” or core of plaintiff’s dispute
is inherently religious in nature. The
“get” and the rationale of withholding such
on religious grounds, even the consequences
of the purported “legitimate second Seruv,”
as well as the claims and remedies are all
inextricably meshed in the Jewish faith,
doctrine and practice.
[(internal citations omitted) (paragraph
breaks added).]
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On appeal, plaintiff maintains that the Law Division’s
dismissal of his complaint was error because, contrary to Judge
Miller’s conclusions, plaintiff’s cause of action can be
adjudicated by applying neutral principles of law and without
excessive entanglement in religious doctrine and practices. In
particular, he argues the Law Division’s opinion focuses on
issues “irrelevant to the resolution of [his] claims.” He
maintains that the judge wrongly focused on the issue of the
“‘significance of a husband withholding or giving a Get’ and the
nature of a Seruv.” He argues that by focusing on such issues,
the judge “bought into the defendants’ attempt to confuse the
issues and create new irrelevant issues.”
He also observes that because The Jewish Press has conceded
that a Seruv was never issued against him, the listing was
therefore false, and thus the only issue that requires
resolution in relation to his claim for damages is whether “such
inclusion was defamatory.” Such factual determination, he
argues, does not require the court to consult or become
entangled in religious doctrine because his claims “are not
predicated on a religious institution’s procedures and
decisions.”
