This article by Howard Slugh first appeared at National Review:
For too long, believers have ignored warnings signs that their rights were under siege. ‘That should not happen in America,” exclaimed a left-leaning friend of mine upon hearing that a federal judge had prohibited some Jewish Californians from engaging in a ritual that Jews have performed for thousands of years. Unfortunately, it did happen in America, and it is not an isolated event. It is part of what Supreme Court justice Samuel Alito has described as an “ominous” trend that should cause “great concern” to “those who value religious freedom.”
In United Poultry Concerns v. Chabad of Irvine, a group of chickens’-rights activists petitioned a federal judge to prohibit a California Jewish organization, Chabad of Irvine, from engaging in Kapparot, a Jewish ritual. This tradition is associated with Yom Kippur, the Day of Atonement, and involves symbolically casting off one’s sins. Some Jews, including the defendants in this case, symbolically “transfer” their sins to live chickens. The chickens are then killed and, typically, donated to needy families.
The judge initially granted the plaintiffs’ request and prohibited the Chabad rabbi, Alter Tenenbaum, from engaging in the ritual use of live chickens. Eventually the judge lifted the ban, but only after it was already too late for Chabad to perform the ritual this year. The damage had been done and can never be entirely remedied.
That a federal judge granted such a ban highlights a disturbing trend currently playing out in America’s public and legal understandings of religious liberty. I have written about how foes of religious liberty seek to re-categorize that liberty as an indulgence, doled out at the discretion and convenience of the majority, rather than a fundamental right that may be denied only in rare and exceptional cases. That desire is manifest in this case. In their briefing, the United Poultry plaintiffs lay out a vision in which private morality and individual conscience are replaced by a one-size-fits-all, government-mandated morality. Religious liberty stands in the way of their dystopian dream, and therefore they and their allies seek to diminish and ultimately eliminate it. For the same reason, every American who values living in a religiously tolerant country that respects individual conscience ought to oppose the plaintiffs’ project.
The plaintiffs (“chicken people”) are not subtle about their hostility toward religion and its role in American life. In their complaint, the chicken people caricature religious liberty as a matter of religious people asserting that “they are above the law and can conduct themselves as they wish because of their religious beliefs.”
The plaintiffs’ objections are not limited to the realm of law. They object to Chabad’s desire to “determine for themselves what is . . . moral conduct.” They argue that only the legislature can determine “legal and moral behavior in the State of California.”
The plaintiffs do not want to control only Chabad’s conduct. They want to control its conscience.
The chicken people describe the Jewish tradition as a “societal evil” and mock Kapparot as “taking out vengeance on an innocent animal for one’s own shortcomings.” These are not quotes cherry-picked from the comments section of an anti-Semitic blog; they are quotes taken from a legal document that won a favorable ruling from a federal judge. The plaintiffs are no more subtle about the scope of their ambitions. They acknowledge that their lawsuit is merely “the first step” toward their “ultimate goal” of banning the religious ceremony nationwide.
The legal arguments advanced by the chicken people make it clear that they want American courts to view the exercise of religion as an ordinary activity enjoying no special legal, moral, or constitutional status. The chicken people sued Chabad under California’s Business and Professionals Code, citing a provision aimed at prohibiting unfair competition.
The plaintiffs admit that the statute applies only to activities that “can properly be called a business practice.” They cite cases indicating that courts have previously held that religious organizations can sometimes engage in “business practices” within the meaning of the statute, but they do cite not a single case indicating that a religious ceremony has ever been considered a business practice. It is one thing to argue that a religious institution engages in a business practice if it runs a restaurant or a shoe store. It is an entirely different matter to argue as the plaintiffs do here: that core religious functions are business practices. Jewish synagogues typically sell holiday seats as a fundraiser. Some synagogues even auction off the honor of leading particular prayers.
Under the plaintiffs’ preferred interpretation, this would make Jewish holiday services into business practices open to government regulation. The plaintiffs asked the court to take the extraordinary step of granting a temporary restraining order to stop Chabad from exercising its faith while the lawsuit progressed. The plaintiffs were not content merely to sue Chabad. They also asked the court to take the extraordinary step of granting a temporary restraining order to stop Chabad from exercising its faith while the lawsuit progressed.
The chicken people expressly asked the court to rule on matters of Jewish doctrine and to determine that Chabad and Rabbi Tenenbaum would suffer “no harm” if they were prevented from exercising their religion in the manner that they desired. In order to grant a temporary restraining order, a court must determine that the harm caused to the plaintiff absent the entry of the restraining order outweighs the harm that the order would cause to the defendant. In other words, the chicken people had to show they would suffer more harm if Chabad were allowed to exercise their religion than Chabad would suffer if it were prohibited from doing so.
One might assume that, in a country that considers the free exercise of religion a fundamental constitutional right, a prohibition to practice one’s religion would be seen as the infliction of a grave injury. Astonishingly, the plaintiffs did not see it that way. Even more amazingly, the judge, at least initially, agreed. The plaintiffs openly dismissed the importance of Chabad’s fulfillment of its religious obligation as understood by Rabbi Tenenbaum. They argued that “the relative harm to Defendants” in preventing them from exercising their religion was “minimal.” The chicken people argued that not all Jews use live chickens for the ritual and that therefore doing so must be “completely optional” and a “mere preference.” They implied that Rabbi Tenenbaum preferred to use live chickens because doing so was “more lucrative.”
Whether the chicken people’s explanation of Jewish law is the only valid interpretation of Judaism — it is not — is beyond the point. Even if such a “single correct” form of Judaism existed, American courts would be neither qualified nor constitutionally empowered to settle such doctrinal disputes. And yet, on October 10, the District Court for the Central District of California granted the plaintiffs’ request for a temporary restraining order, without explanation. In order to grant the request, the court necessarily accepted the plaintiffs’ argument that the rabbi’s religious practice was less important than he believed. Such a holding is ominous. The court did lift the restraining order moments before the start of the holiday, but the plaintiffs had already been irreparably harmed — it was too late for the rabbi and his coreligionists to exercise their religion. Giving the judge the benefit of the doubt, we might say that he did not understand the cruelty that he was inflicting on Rabbi Tenenbaum and his congregation. But the judge’s inability to understand the importance of a religious obligation demonstrates precisely why the American notion of religious liberty has traditionally prohibited — and must continue to prohibit — judges from making such determinations in all but the most extreme of cases. Despite the dire facts of this case, there are hopeful signs. Some of the largest and most prominent religious organizations in American Jewry quickly condemned the judge’s anti-Kapparot order and defended Rabbi Tenenbaum’s religious liberty. In perhaps the swiftest and most forceful demonstration of this awaking, the executive vice president of the Rabbinical Council of America, America’s largest association of Orthodox Rabbis, properly recognized that the judge’s initial decision represented part of a “worrisome trend” whereby “government actions . . . aim to limit religious expression when it clashes with values embraced by parts of society.”
One practical step that religious organizations can take is to support the passage of a Religious Freedom Restoration Act in all 50 states. For far too long, religious Americans in general, and Jews in particular, have ignored warnings signs that their fundamental rights were under siege. However, recent events, including the Obama administration’s attempt to coerce nuns into providing their employees with abortion-inducing drugs, have started to alert religious Americans to the mounting danger. One practical step that religious organizations can take is to support the passage of a Religious Freedom Restoration Act in all 50 states.
Opponents of such laws have successfully misrepresented them as being “anti-gay” and providing a “license to discriminate.” Such critiques are nonsense. Those laws merely state that the government cannot substantially punish a religious believer for exercising his religion unless it can prove that it has a compelling reason to do so and that it would not be possible to further that interest while preserving the adherent’s religious liberty. Defenders of religious liberty — and, in fact, of individual liberty — should stand united and refute the chicken people’s argument that only the government can determine morality and that an individual’s understanding of his own consciences has “minimal” value.
Howard Slugh is an attorney practicing in Washington, D.C.
This article by Howard Slugh first appeared at National Review.