August 14, 2009
As reported here, and as Mitchell Rubenstein predicted, the Appellate Division of the Supreme Court will consider a teacher’s appeal of a Kings County Supreme Court’s nullification of a rabbinical arbitration panel’s decision in an employment case.
Following a dispute between the Hebrew Academy of Five Towns and Rockaway and one of its teachers, Nachum Brisman, regarding the school’s decision to terminate his employment, both sides agreed to have their dispute arbitrated by a well-known rabbinic panel, the Beth Din of America. The rabbinic panel’s arbitration decision favored the teacher in the dispute and when the teacher brought the decision to the Kings County Supreme Court to enforce the decision, it instead vacated it. Judge Balter’s decision can be read here.
Now, Brisman has appealed the lower court’s vacature of the arbitration before the Appellate Division. Three major orthodox Jewish organizations, the Orthodox Union, Agudath Israel of America, and Torah U’Mesorah, joined together last week to file a “Friend of the Court” brief, arguing that the Appellate Division should reverse Judge Balter’s vacature of the arbitration panel’s decision.
You can read the amicus brief here.
The organizations’ amicus brief emphasized that their support of Brisman’s appeal “should not be construed as advocacy on behalf of either party with respect to their underlying claims.” Rather, they clarified in the brief that they are advocating for the reversal of the Supreme Court’s vacature of the rabbinic arbitration agreement in order to prevent the weakening of the rabbinic arbitration system in general.
Indeed, it is difficult to fathom how the court could nullify an arbitration decision that both parties had agreed in advance to abide by. Such a decision seems to encourage the losing party in any kind of arbitration decision to appeal any decision if he knew that the state courts would vacate any decision that the losing party was unhappy with, as long as he could convince the court that the arbitration panel’s decision is “irrational.”
We will see if the Appellate Division agrees. Update 2/19/10: It does!
Picture courtesy of vosizneias.com
Prof. Howard M. Friedman, at the Religion Clause blog, reported on the case of Sanders v. State of Texas, decided by the Texas state appeals court just over two weeks ago. In that case, Sanders was convicted of killing Angela Alex and her unborn child. He was convicted based on the Texas Penal Code § 1.07 which “prohibits intentionally and knowingly causing the death of any ‘individual’, and defines ‘individual’ as including ‘an unborn child at every stage of gestation from fertilization until birth.’”
Sanders challenged his conviction, arguing that TX’s definition of the killing of a fetus “at every state of gestation” is unconstitutional because it constitutes a violation the establishment clause of the First Amendment as incorporated against the states by the Fourteenth Amendment. However, the Texas appellate court upheld the TX statute because the statute’s “principal or primary effect” was not to advance religion since it had a valid secular purpose in that it “serves the State’s legitimate secular interest in protecting unborn children from the criminal acts of others.”
While some may find this surprising, many relatively pro-choice states have laws that classify the killing of a fetus as homicide or murder. For instance, the New York Penal Code § 125.00 defines homicide generally as “conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks…” (emphasis added)
Legislation was introduced on January 15, 2009, just three months ago, which would prohibit the killing of a fetus “at any state of gestation…” (emphasis added) The new language would be more similar to the Texas statute, classifying the non-consensual killing of a fetus at any state of gestation as homicide. Even if adoped, the new language would not take effect until November 1st of the year it is adopted and would not affect abortions performed consensually at the behest of the mother by a physician.
Only about one in seven New York residents believes that abortion by a physician should be prohibited. Nevertheless, the legislature stated that their intent was to give greater protection to pregnant women who are abused to the extent that the abuser’s attack causes her to lose her fetus. The permitting of doctor-performed abortions on one hand and the classification of causing the death of a fetus as murder on the other hand may seem inconsistent, but this dichotomy plays itself out in many other states around the country.
California, a strong pro-choice state, defines murder as “the unlawful killing of a human being, or a fetus…” California cases have defined a fetus as such under the statute at “about 7 or 8 weeks” gestation, when its major structures have been outlined. People v. Valdez (App. 3 Dist. 2005).
States’ classification of killing a fetus as murder is inconsistent with the legality of abortion only if the measuring stick one uses is “when life begins.” But if one considers that legislatures are using a different measuring stick, those positions do not seem as inconsistent. The common denominator that runs between these seemingly inconsistent rules is the legislature’s desire to protect the wishes and rights of pregnant women. Whether the mother wishes to terminate her pregnancy or to prosecute an abuser who terminates her pregnancy through the use of violence, in both cases the legislature’s desire is to honor those wishes.
The fact that even the most pro-choice states classify the killing of a fetus as murder in their criminal statutes indicates that such a classification is certainly not intended as an establishment of religious doctrine as state law. Rather, the fact that states consider non-consensual abortion to be murder while consensual abortion is perfectly legal indicates that in this area of the law, the interests, choices, and wishes of pregnant women are the overriding concern, rather than any attempt at a consistent definition of “when life begins.”
Picture courtesy of Dartmouth Independent.