Emory Report

March 30, 1998

 Volume 50, No. 26


Broyde breaking new legal
ground in Jewish divorce cases

Last fall Louisiana passed a law giving nuptial couples a choice between a "standard" marriage and a "covenant" marriage, the latter carrying with it restrictions making divorce a much more difficult option. Regardless of how one feels about the law, it's clear the state was trying to do something to cut down on the number of failed marriages.

Michael Broyde sees his work somewhere along those same lines, as an alternative to sometimes nasty divorces that leave former spouses embittered toward each other, often with children caught in the middle between two parents they deeply love. Broyde, a professor in the law school and also an ordained rabbi, has spent his sabbatical of the past year in New York directing a new divorce program for Beth Din of America, the Jewish religious court.

Working for the Beth Din, Broyde in effect serves as an arbitrator during the issuing of a get, the Hebrew word for a document grant-ing permission for divorce. The Beth Din has handled gets for nearly 40 years but only recently did it begin dealing in situations of agunah-where one party refuses to grant the divorce.

"Agunah comes from the Hebrew word for 'chain,'" Broyde said. "That's because this person is being chained to a dead marriage. There's a whole discussion in the Jewish tradition about being chained to a dead marriage or to a bad marriage, and that's what I spent this sabbatical year working on."

Having lived in Atlanta as a child and even attended Emory summer camps, Broyde was recruited seven years ago as part of the Law and Religion Program. Initially a professor in the religion department, he later moved to the law school and now teaches courses in both Emory College and the law school, among them Jewish law and arbitration law. He also directs the law school's project on law, religion and the family.

Broyde developed his subspecialty in arbitration law because of his involvement with Jewish law courts. Traditionally the umbrella of Jewish law covers a much wider range of activities than other religious legal systems. "Tradition recognizes very strongly that classical commercial and financial law is governed by Jewish law as well, so Jewish law is not confined to the synagogue in any conventional sense," Broyde said.

Under American law the procedures and rulings of Jewish law courts are treated just as any other produced by a legal arbitration hearing, thus Broyde's knowledge of arbitration law. For example, he recently settled a dispute in Washington between two housing contractors over the building of a house.

Where this bears on family law and divorces is in the "nonadversarial" posture of the two parties in a Jewish court. Called an inquisitorial system, judges in Jewish law courts have much more authority to direct proceedings and discretionary powers in making judgements. The presence of lawyers is discouraged or even prohibited, Broyde said.

"My theory is the [American] court system has fundamentally failed in resolving end-of-marriage disputes because it has an adversarial litigation posture when in fact such a posture is not necessary, does not succeed and only further divides both parties," Broyde said. "Jewish law is more successful in attempting to resolve disputes with some sort of compromise between truth and peace.

"The Jewish tradition always thought truth and peace were not exactly identical," he continued. "Some litigations require a commitment to truth, some to peace and some to both when they are in dialectic tension, imbalanced. Our secular litigation system is fundamentally committed to truth-[it's] not very successful [in end-of-marriage disputes]. What we do in this court is attempt to compromise between peace and truth."

Of the roughly 100 divorce cases the Beth Din has heard since last summer, Broyde has personally sat in on most of them. He also serves as rabbi of the Young Israel of Toco Hills synagogue. As a husband and father of three children, Broyde feels the country's high divorce rate is disturbing, but he's also realistic in acknowledging that often divorce is the best solution.

"Many people live in miserable marriages," he said, "and this is very bad as well. Divorce is an unfortunate situation and how best to resolve divorce disputes is a difficult question, but it seems the American model doesn't work. Everybody recognizes the status quo is failing or, even worse, has failed. So everybody is searching for alternative models, and this is an alternative model."

That's not to say Broyde does not import some ideas and procedures of secular law into the practice of Jewish law; indeed, this was the impetus behind the Beth Din's new program, since before Jewish couples were often at an impasse when one spouse refused to grant the divorce. Procedures like pretrial briefings and dispute settlements that have grown out of the American legal tradition are very useful in the Jewish law court. "There are a whole host of developments in American law that expand the horizons for Jewish law," Broyde said.

In addition to family law, Broyde also works in bioethics and Jewish law, and he and John Witte, director of the Law and Religion Program, recently edited Human Rights in Judaism: Cultural, Religious and Political Perspectives, a collection of essays. One would think straddling professorial and rabbinical duties would get confusing after a while, but Broyde keeps it all in perspective.

"In the capacity of the Beth Din, I go by 'rabbi,'" he said. "But in the law school, 'Michael' is just fine."

-Michael Terrazas

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