Orthodox groups appeal the decision undermining a Jewish grandfather's wish.
By AVI SHAFRANharedi man walking 88(photo credit: )
Among American Jewish sagas, sadly, Max Feinberg's family story is not atypical.
The Chicago dentist, who died in 1986, and his wife, also now gone, were survived by two children and five grandchildren. Of the five, only one married another Jew.
Unremarkable, perhaps. And, from a Jewish perspective, tragic. But in this case, it was also the beginning of an unusual lawsuit, the result of Feinberg's decision in 1984 to concretize his concern - borne out by events - that his grandchildren might not recognize the Jewish religious imperative that Jews marry other Jews.
What Feinberg did was amend his will to disinherit any of his grandchildren or their descendents who married outside the Jewish faith. The grandchild's spouse didn't have to be born Jewish; he had no objection to converts.
Enter the Illinois court system. At the behest of one of the grandchildren, a court considered the case and ruled that the clause Feinberg placed in his will was unenforceable and invalid; an appellate court affirmed the decision.
Half a continent away, at Agudath Israel of America's offices in New York, the decision - relayed by the organization's Midwest office's Sheba Seif - raised deep concern. What troubled executive vice president David Zwiebel and associate general counsel Mordechai Biser was not just that Feinberg's concern for Jewish continuity was entirely proper and admirable, and not just that the rulings undermined the Jewish grandfather's deeply felt wishes, but that they set a dangerous precedent that encroached, the Agudath Israel lawyers believe, on the religious rights of an American citizen.
And so a decision was made to submit an amicus curiae ("friend of the court") brief to the Illinois Supreme Court.
AGUDATH ISRAEL reached out to the organization's national volunteer legal network for help with the brief, and a team of attorneys at the New York law firm of Debevoise & Plimpton LLP agreed to do the research and writing. Attorneys Mordechai Serle, Naftoli Leshkowitz, Jonathan Rikoon and Jacob Stahl produced the 58-page document. Two other national Orthodox Jewish organizations - the National Council of Young Israel and the Union of Orthodox Jewish Congregations of America - agreed to sign on as well.
The brief makes the case for Feinberg's right to condition distribution of his assets after his death as he saw fit. Moreover, it notes, the clause that the deceased placed in his will was an expression of sincere religious belief, reflecting both the Jewish religious tradition and well-founded concerns about Jewish assimilation.
The brief also counters a number of assertions made in the lower courts' decisions, like the claim that honoring Feinberg's will as amended would discourage "lawful marriage" and encourage divorce, and is therefore contrary to public policy. Among other points, the Jewish groups' brief cites sociological evidence demonstrating that couples are much less likely to divorce if they share a religious identity.
The brief also notes that there is considerable precedent in a number of states for permitting a will to place marriage restraints on potential inheritors, as long as the restraints are reasonable.
Finally, the brief contends that preventing a Jewish man from seeking to instill in his descendants a sense of religious identity interferes with his religious rights - violating not only the Illinois Religious Freedom Restoration Act but the "Free Exercise of Religion" clauses of both the Illinois and US Constitutions.
The grandchild who had brought the original legal action responded to the brief by asking the Illinois Supreme Court to reject it, contending that the amici lacked a valid claim of appropriate interest in the case, had nothing of relevance to offer the court and had insufficient connections to Illinois to afford them standing in the case.
The very next day, the attorneys at Debevoise & Plimpton LLP received notice from the court that their request to file a brief had been denied.
THE RESPONSE was immediate. Not only are national Orthodox Jewish organizations ideally suited to provide the court with an authentically Jewish perspective, the lawyers asserted, but a case like the Feinberg will case is precisely the sort of legal consideration where such a perspective is sorely needed. What is more, the amici pointed out, the arguments advanced to date in the litigation came exclusively from parties whose motivation was principally financial - to protect an interest in the "Max Feinberg" trust - without an interest in the broader effect on religious liberty. Consideration of religious liberty issues, they contended, is unquestionably part of the court's legitimate purview.
As to having connections to Illinois, the amici described their extensive presence in the state and the role they play in local Jewish communal life. Together, they pointed out, their groups' affiliated organizations in Illinois - including political action offices, synagogues and youth groups - represent thousands of the state's citizens.
And the amici further informed the court that they have a long history of legal advocacy in cases involving religious liberty. Agudath Israel, for example, has submitted numerous briefs before courts on all levels, including dozens before the US Supreme Court.
On March 3, Illinois Supreme Court Chief Justice Thomas Fitzgerald ruled that the Orthodox groups' brief would be accepted and considered by the court. Arguments are scheduled for May 19.
Says Rabbi Zwiebel: "Mr. Feinberg, unfortunately, cannot make his case himself. But others can stand - and are standing - in his stead, hoping that the Illinois Supreme Court will recognize not only the right of a citizen to bequeath his savings as he wishes but also the right of a Jew to do what he can to ensure his family's Jewish future and the religious identity of his people."
The writer is director of public affairs for Agudath Israel of America.
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