The Illinois Supreme Court has upheld the so-called “Jewish Clause” in a will of a deceased Chicago dentist who wanted to disinherit any children or grandchildren who failed to marry a Jew. Max Feinberg’s will will result in four grandchildren being disinherited.
Feinberg allowed grandchild to marry a non-Jew so long as the person converted within a year. His wife Erla could have gotten around the restriction but decided to enforce it against the grandchildren.
To make matters worse for the family, two of the grandchildren accused the Feinbergs’ daughter, Leila Taylor, of misusing $1.6 million in funds for her own benefit. Taylor then sought to dismiss the complaint by noting that the grandchildren had no standing because they married non-Jews.
The Illinois Supreme Court ruled “[b]ecause a testator or the settlor of a trust is not a state actor, there are no constitutional dimensions to his choice of beneficiaries. Equal protection does not require that all children be treated equally; due process does not require notice of conditions precedent to potential beneficiaries; and the free exercise clause does not require a grandparent to treat grandchildren who reject his religious beliefs and customs in the same manner as he treats those who conform to his traditions.”
I agree with the decision, even though I find the views of Feinberg and his wife to be offensive and filled with prejudice. While I grew up in a devout Catholic family, I (and one of my brothers) married Jewish women and there was never anything but joy that we found the “right girl.” Our parents were more concerned about our happiness and felt that God would want the same thing.
The family insists (here) that the objection to the will is simply a case of “political correctness.” I would call it something a bit more than that. Most parents and grandparents are more concerned about their children finding someone who they love and allowing them to find their own path to a fulfilling faith. However, these parents have a right to impose their own idiosyncratic demands on their children, so long as it complies with the criminal law and such property doctrines as the Rules Against Perpetuities. It was Max’s money and he should be allowed to control its distribution.
Max Feinberg, therefore, succeeds on a posthumous basis to show that he had every right to be prejudicial and cruel to his descendants.
For the full story, click here.
Loving, Bowers and Lawrence.
The classics.
Loving v Va, oh yeah. Then read the Georgia case”Bowers v. Hardwick, 478 U.S. 186 (1986), was a United States Supreme Court decision that upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults. Seventeen years later the Supreme Court directly overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), and held that such laws are unconstitutional. In overruling Bowers v. Hardwick, the 2003 Court stated that “Bowers was not correct when it was decided, and it is not correct today.”
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They can really stick it to ya sometimes.
“This IS the public policy of the state of Illinois, according to a unanimous supreme court (4 Dems and 3 Reps). Anyone who wants to change this public policy ought to address their arguments to the legislature.”
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What if, as I propose, the manifest public policy of the State of Illinois differs from the manifest public policy of the United States as announced in Shelley? Any bets on who wins then. For a preview, read Loving v. Virginia.
ov,
1) Personally I assumed the nature of intestate succession (in all states but Louisiana) was a given, but the clarification is most welcome.
2) I don’t see this as incompatible with the above. Changes in law can come about by both legislation or by judicial review. That some issues naturally come to one branches attention over another branch is simply the Separation Doctrine in action. The legislature is as imperfect as the judiciary but that is part and parcel of why they offset each other. The balance of weaknesses and strengths. Different functions, different priorities and methodologies. All part of the checks and balances. How many laws have been changed over the years because of a lawsuit? Need I say more than Ford Pinto? Heart of Atlanta Motel v. U.S.?
It’s interesting that we are still talking about this case.
Two points that haven’t been made yet:
1. I see a lot of people on this site and elsewhere saying that Dr. Feinberg “disinherited” his grandchildren. He did not. You cannot disinherit a person who would not have been an intestate heir had you died without a will. Under Illinois law, Dr. F’s only heirs were his two adult children. So long as they both survived (and both are still living) his grandchildren had absolutely no legal expectancy. The opinion makes this clear.
2. Second, there is a wide range of opinions expressed her as to what the public policy of the State of Illinois SHOULD BE with regard to such provisions in wills. The court made it clear that it was not MAKING public policy, but FINDING the State’s public policy in its existing statutes and long-standing case law (cases that had been around long enough that the legislature could have changed the law if it had wanted to). The court clearly found that the Probate Act strongly favors freedom of testation and that there was nothing in existing case law to prohibit the Feinbergs from favoring the grandchildren who married within their faith (so long as the provision did not operate going forward to limit access to lawful marriage or to encourage divorce). This IS the public policy of the state of Illinois, according to a unanimous supreme court (4 Dems and 3 Reps). Anyone who wants to change this public policy ought to address their arguments to the legislature.
Byron:
But if the court doesn’t enforce the provision isn’t that the same as negating this mans wishes?
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No, the family is free to comply with the bequest and hence the testator’s intent free from any state intervention. The state has no duty to enforce agreements contrary to it’s public policy.
Mespo:
But if the court doesn’t enforce the provision isn’t that the same as negating this mans wishes?
Do they refuse to enforce gambling debts in states where gambling is legal?
Byron:
I think you fail to draw the distinction between a discriminatory bequest (the will restriction) and enforcing that bequest (the suit). Buddha and I have tried to say that we have no legal issue with the testator making such a stupid and boorish provision, we just see no requirement that the court enforce that provision. You may consider this a right without a remedy, but isn’t the refusal by courts to enforce gambling debts the exact same thing? The Courts need not be complicit in discrimination based on religious affiliation.
Byron,
I see what all parties are saying. I see it from the side of a potential beney and I also see it from the side of the state (Buddha, messpo). I believe that if the will/trust had stated that they could only marry Jews, it would have been set aside. It gave the ability to marry non Jews who converted within 1 year. This too is a feat to do. It may take as long as one year or longer depending upon the rabbi.
I believe that this was treated as a discretionary trust. It was up to the trustee to determine if they met the qualifications set out by the settlor. Since they did not they sued. I also remember reading that the granddaughter that was disinherited is accused of misusing 1.6 million. This may have had something to do with it as well.
Greed, which knows no particular loyalty was the silent role player in this case. As you should be aware, if it was a 4 corners approach with the will it may have been upheld. But alas most contests do not have all of the same factors as in Shelly.
I do see it from both sides as a professional and as a victim of competing family rivalries. I have accepted, so far my lot in life so to say.
mespo/Buddha:
I must be missing something, having read the above I still agree with BobEsq and Puzzling.
This is a strictly private matter between family members. What if I tell my daughter she can no longer drive my car because she has a tattoo of Jesus on her right calf (she is over 18)? Is the state going to intervene on the issue of separation of church and state, I am inhibiting her free exercise of her religious beliefs?
It is not illegal to drive nor is it illegal to put a tattoo on your body. I don’t disagree that the grandfather is a creep, anyone that loves their children and grandchildren would not do this, I would call it evil even. But it is not compelling the children to marry people of Jewish faith, they have a choice. Had I been this mans son, I would have told him to go take a flying leap at the moon and never spoken to him again. (To ask the state to give you balls is to have none.) That is the proper redress not state intervention.
The state cannot right all wrongs, if it did it would surely infringe someones rights.
puzzling:
“So it’s not illegal for private parties to enter into a discriminatory contract, it’s only illegal for the government to enforce it?”
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Memberships in truly private clubs do this all the time.
What other legal contracts should the government not enforce?
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When they offend the manifest public policy of the state. For example, if it can be proven that a “private” club is actually a public accommodation, and thus subject to state and federal anti-discrimination laws, the club’s discriminatory policies must yield to the state’s interests. Gambling contracts are likewise unenforceable contracts in many states due to their underlying illegality.
mespo,
So it’s not illegal for private parties to enter into a discriminatory contract, it’s only illegal for the government to enforce it?
What other legal contracts should the government not enforce?
puzzling:
“Giving money to terrorist organizations is illegal. However, there is nothing illegal about me giving money to any of these children or grandchildren.”
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You plainly see the trees but miss the forest. Discrimination based upon religious differences is illegal when the government enforces it, though it may not be illegal when the individual does it–no matter how boorish. The Court in Shelly went to great pains to say that while the underlying activity might pass due process muster, the actions of the state in enforcing the common law right might still violate the 14th Amendment:
“But the examples of state judicial action which have been held by this Court to violate the Amendment’s commands are not restricted to situations in which the judicial proceedings were found in some manner to be procedurally unfair. It has been recognized that the action of state courts in enforcing a substantive common-law rule formulated by those courts, may result in the denial of rights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in such cases may have been in complete accord with the most rigorous conceptions of procedural due process.”
occasional visitor:
“The Illinois Supreme Court specifically considered and rejected the argument based on Shelley v. Kraemer.”
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Well they did spend an entire two paragraphs on a little issue like equal protection and dismissed Shelly with the breezy statement that is had been “widely criticized for a finding of state action that was not “ ‘supported by any reasoning which would suggest that “state action” is a meaningful requirement rather than a nearly empty or at least extraordinarily malleable formality.” (I expend more words notifying my newspaper boy that I am on vacation next week).
So there, that cinches it.
This is lazy analysis and bad logic. Criticism is not the same as overruling precedent and I believe the US Constitution still applies in “The Land of Lincoln,” though after Blogo, I have my doubts.
mespo,
Giving money to terrorist organizations is illegal. However, there is nothing illegal about me giving money to any of these children or grandchildren. Therefore, there is nothing wrong with the father giving money, or not doing so. I’d like to set the Al Quaeda argument aside for the moment.
I think the strongest argument is that this is analogous to the government enforcement of race restrictions on real estate sales, as you referenced with Shelley v. Kramer.
However, I think there are key differences: there was a relationship between this father and his children and grandchildren, and this was an immediate test for qualification. It could not shape future behavior, like marriage. I am not an attorney as you know by now, but I see this is as a very different basis than a future restrictive covenant to unrelated persons decided in Shelley v. Kramer.
Mespo,
Read the opinion! The Illinois Supreme Court specifically considered and rejected the argument based on Shelley v. Kraemer.
puzzling,
Unequal isn’t the issue. Illegal or possibly illegal is.