dissenting:
I respectfully disagree with the majority. The true issue in this case is whether a civil court has the authority to compel a party to perform terms of a “ketubah,” i.e., an antenuptial agreement used by Orthodox Jews, which require interpretation of religious doctrines and religious worship. Petitioner argues that the trial court’s order compelling him to perform the terms of the ketubah violates his constitutional rights under the first amendment (U.S. Const., amend. I) and under section 3 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §3). Petitioner also argues that the terms of the ketubah were too vague to support the specific performance of obtaining a “get,” i.e., a Jewish bill of divorcement.
After the trial in this matter, the judge ordered specific performance of the ketubah, which included the following provision: “Be thou my wife according to the law of Moses and Israel.” Expert testimony given by two Orthodox Jewish rabbis and accepted by the trial court established that the provision “meant that [the] status of the marriage would be governed by Orthodox Jewish law.” Orthodox law requires the ex-husband to give a “get” to his former wife in order to have the divorce between the parties recognized by all Jewish people. Respondent testified that she believed that Orthodox law requires a get if a divorced woman desires to remarry and have that marriage recognized by the Jewish religion. Otherwise, the church refuses to recognize the remarriage as valid and views any issue from the remarriage as illegitimate. Petitioner testified that he did not practice Orthodox Judaism and that he found the beliefs and practices to be “antimodern” and repulsive.
It is a long-standing rule in Illinois that the civil court will not interfere in questions involving religious dogmas unless they have consequences upon civil or property rights. (Chase v. Cheney (1871), 58 Ill. 509.) In Chase our supreme court declined to decide the issue of whether a Protestant Episcopal clergyman had breached his employment contract by refusing to recite language prescribed by the religious canons in the ministration of an infant baptism, a church ritual. The court reasoned that the clergyman was a voluntary member to the church association to which he belonged and that he voluntarily adhered to the rules, laws, and canons of the church. No property right had vested under the employment contract so as to authorize the civil court to become involved in a matter which necessarily required the interpretation of religious doctrines and canons of the church.
Religious worship includes performing external acts and observing all ordinances and ceremonies practiced by the religious association to which one belongs. The free exercise and enjoyment of religious worship, or lack thereof, is protected by the constitution. (Chase, 58 Ill. at 533-34.) Our “constitution intended to guarantee, from all interference by the State, not only each man’s religious faith, but his membership in the church, and the rites and discipline which might be adopted.” (Chase, 58 Ill. at 537.) There are two exceptions to this uncontrolled liberty, and neither applies here. Any order of the court which requires extensive investigation and evaluation of religious doctrines and tenets is prohibited by the first amendment. Baumgartner v. First Church of Christ, Scientist (1986), 141 Ill. App. 3d 898, 906.
Here, determination of whether a civil court can compel specific performance of a form of religious worship does not involve consequences upon petitioner’s property rights, nor was there any effect upon petitioner’s civil rights before the trial court’s order of specific performance. Furthermore, the trial court's construction of the provision, “Be thou my wife according to the law of Moses and Israel,” required the court to partake in evaluation, investigation and interpretation of religious dogma. I do not suggest that the trial court was without authority to make a ruling on the contract; rather, that the court must not compel petitioner to participate in any performance of a provision within the contract which necessarily required interpretation of a religious doctrine and his involvement in an act of religious worship.
The majority reports that the trial court “found that although Kenneth had an intense dislike for Orthodox Judaism, his feelings did not rise to the level of a religious belief.” (196 Ill. App. 3d at 791.) The inference here is that since petitioner’s dislike for Orthodox Judaism did not qualify as a religious belief, his beliefs will not be protected under the Federal or State Constitutions and, therefore, he can be compelled to participate in acts which constitute religious worship. I agree that petitioner’s dislike of Orthodox Judaism does not qualify as a religious belief; nevertheless, our constitution protects his right to freely choose whether he will participate in acts of religious worship. An individual’s participation, even by proxy, in a religious ritual is a form of religious worship. The civil court has no right to dictate one’s religion or the form in which one practices the religion of his choice. Our constitutions allow us to make these choices voluntarily. We must remember that one is free to seek such membership and to accept or abandon all of its rules, laws and canons at his will. Freedom of religious worship cannot be maintained if the civil courts attempt to construe and enforce ecclesiastical laws and doctrines and compel voluntary members to comply with them. This is what the majority attempts to to do here. The trial court’s order compelling petitioner to engage in the observance of the ordinances and ceremonies of the Orthodox Jewish religion abrogates the very essence of freedom of choice concerning matters of religious worship.
Furthermore, the civil court is limited to dissolving the marriage between the parties in accordance with the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.) There is no reference in that Act to a requirement of a “get” for a valid dissolution of marriage under the civil law. Accordingly, we are prohibited from compelling one to follow religious tenets to fulfill ritualistic requirements of the church. Again, we must leave such a decision to the discretion of the individual.
Additionally, I do not believe that the terms of the ketubah were so definite and certain as to allow the court to require the specific thing contracted for to be performed. The standard for enforcing specific performance of a contract prohibits the court from making a contract for the parties and enforcing it. (Kalkounos v. Four K’s, Inc. (1981), 94 Ill. App. 3d 1011, 1013.) Here, the trial court’s order, which expressed four specific options for compliance with the ketubah, cannot be distinguished from the court making a contract for the parties. The trial court’s order, which expresses the four options necessary for petitioner’s compliance, would not be necessary had it, indeed, found that the terms of the ketubah were sufficiently certain and definite so as to determine what was specifically contracted for. The expression of the precise options available for compliance with the ketubah should have been left to the parties to determine and include in their agreement. Even if this were the case, this court would be precluded from compelling specific performance of religious rituals in the event of a dispute between the parties concerning the meaning of a contract provision based upon a religious tenet.
I would reverse the judgment of the trial court.