May a testator condition a gift on the beneficiary not marrying a gentile?

The degree to which a testator may condition a gift on the behavior of a beneficiary has long been litigated with inconsistent results.  A recent situation has brought this issue to the attention of the public.

According to Ron Grossman, 'Jewish clause' divides a family, Chicago Tribune, Aug. 25, 2008:

• Max Feinberg, a wealthy Chicago dentist who died in 1986, included a provision in his will and testamentary trust which provided that any descendant "who married outside the Jewish faith" would be precluded from receiving any property from his estate.
• Max's wife was the primary beneficiary of the trust and she died in 2003.
• Max's daughter is administering the trust.
• Two of Max's grandchildren are claiming that Max's daughter is breaching her trust duties.
• The standing of these grandchildren, however, is in doubt because they both have married gentiles and thus would not be beneficiaries under Max's will if the so called "Jewish clause" is enforceable.
• The case is a "showdown" between individual rights and political correctness.
• The Jewish clause could cause interesting problems because a descendant who marries outside the Jewish faith is considered deceased.  But, what would happen if a grandchild married a gentile, divorced the gentile, and then married a Jew?  Would the grandchild be again entitled to estate property?
• A lower Illinois appellate court has ruled that it would be contrary to public policy to honor the Jewish clause.
• An appeal is pending with the Illinois Supreme Court.  The Court has not yet decided whether to hear the case.

Special thanks to Alfred Brophy (Reef C. Ivey II Professor of Law, University of North Carolina School of Law) for bringing this article to my attention.