Jewish Groups Submit Briefs In Religious Liberty Case

Two briefs were filed this week highlighting broad repercussions that a controversial case, now before the Supreme Court, could have on the Jewish community, as well as on religious liberty in America in general. The case centers on a Catholic group known as Little Sisters of the Poor and a collection of co-defendants who claim that the present protocols of the Affordable Care Act force them to be a party to the delivery of medical services that violate their beliefs.

While focusing on different angles, both briefs argue that the administration’s position in the case, if upheld, would effectively call for the government to make judgments about the legitimacy of specific religious beliefs, a situation that poses a particular danger to minority religions whose doctrines and laws are generally not widely known or understood.

“The very notion of the government deciding that they are not violating their religious beliefs is objectionable,” Rabbi Abba Cohen, Agudath Israel’s vice president for federal affairs and Washington director told Hamodia.

Religious entities that are classified as “houses of worship” are not required to conform to the part of the healthcare mandate being called into question, but the government has refused to excuse the Little Sisters, saying that the nature of their organization (which cares for elderly poor) is too secular to qualify for the exemption. Furthermore, the administration maintains that accommodations made in the wake of the monumental Hobby Lobby decision, which allows for objectors to arrange for payment for medical services through a third party insurer, does not constitute a “substantial burden” on the plaintiff’s religious beliefs.

The brief of The National Jewish Commission on Law and Public Affairs (COLPA) has been signed on to by a number of major organizations, including Agudath Israel of America, The Orthodox Union, and Torah Umesorah, and was prepared by noted attorney Nat Lewin.

The document focuses on the distinction that the government has made between different types of religious entities, saying that Jews and possibly other groups would be ill-served by stripping all but “houses of worship” of their designation as religious.

“Distinguishing between the location where worship takes place (a synagogue or Bet Knesset) and other independent sites which are intrinsically necessary for religious observance (such as a religious school or beis medrash) and granting broader latitude for religious freedom to the former than to the latter should be impermissible under both the Religious Freedom Restoration Act (“RFRA”) and the First Amendment to the United States Constitution,” says the brief.

Rabbi Cohen said that this differentiation could present a two-pronged problem for religious groups.

“We felt the guidelines that they set were so narrow that they would exclude many religious organizations and who knows what this could mean in the future?” he said. “It could change the whole landscape of religious liberty law.”

Additionally, he added that the very nature of the distinction entangles “the law in religious decision making,” in violation of the establishment clause of the Constitution.

A separate brief was submitted by Rabbi Mitchell Rocklin, who has led several congregations and served as a military chaplain; Rabbi Steven Pruzansky of Congregation Bnei Jeshurun of Teaneck, N.J.; and Rabbi Dov Fischer of Cong. Beth Jacob of Irvine, California, all three leaders in the Rabbinical Council of America.

Their argument centers on the plaintiffs’ general objection relating to the dangers of the government’s determination that the present accommodation should eliminate any reasonable religious objection.

“The Obama Administration’s position is that American law only protects a religious practice if politicians or judges decide that the practice is important,” Rabbi Rocklin told Hamodia. If this new standard were ever adopted, it would be particularly dangerous for our community, since Orthodox Judaism is not broadly understood in America. Already, a judge has suggested that turning on a light bulb every day might not constitute a religious burden for anyone. We realize that this would require us to violate Shabbos, but of course we don’t expect all Americans to know that. We are therefore arguing that individuals have the right to determine the parameters of their own religious obligations. If this is true for Orthodox Jews, it must be true for the Catholic nuns involved in this case, and for all Americans.”

The brief goes on to describe issues in Jewish law that are little known by the general public, such as shaatnez and details of Shabbos observance that could be viewed as “minor” by a judge not familiar with them.

“There are no objective criteria that this Court could use to determine which of these competing theological claims is correct,” it says.

Seven out of eight federal appeals courts have agreed with the administration that their accommodation does not violate the federal religious freedom law. Only the appeals court in St. Louis ruled for the groups, saying they probably have a right to refuse to comply with the administration rules. This split in the rulings of Federal courts, most likely played a key role in the Justices’ decision to add the case to its docket for the coming year.

Organizations representing nearly every major religion with populations in America and 200 members of Congress from both parties have also filed briefs in favor of the plaintiffs in the case, formally known as Zubik v. Burwell.

Arguments are set to be heard in March.

This article appeared in print on page 10 of the January 13th, 2016 edition of Hamodia.