Orthodox Organizations File Briefs in Religious Liberty Case


Two briefs submitted to the Supreme Court draw attention to potential repercussions to the Jewish community and broad threats to religious liberty in a major case that is scheduled to be heard by the Justices in the coming months. The case, National Institute of Family and Life Advocates (NIFLA) v. Becerra, pits the Christian group against the State of California, which by law requires such organizations to inform individuals that they service about state-funded public programs that violate their religious beliefs.

Agudath Israel of America joined with several national Christian organizations in a brief in support of NIFLA that was filed on Tuesday.

“[This case] is about the First Amendment right of all religious organizations to choose for themselves not only what to say, but ‘what not to say,’” says the brief.

The case revolves around the constitutionality of the state’s FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act, which requires health-care facilities, including private ones and those sponsored by religious organizations, to advertize that the services NIFLA objects to are available for free or at low cost. These programs must be advertised either by handing out a printed notice in “14-point or larger type,” providing a digital notice at the time of arrival, or posting a notice in the waiting room — a sign that “must be at least 8.5 inches by 11 inches and written in 22-point or larger font.”

After a series of lower courts ruled for the State of California, the NIFLA asked the High Court to intervene.

“If upheld by this Court, the Ninth Circuit’s decision would allow governments of all stripes to tell such organizations what they must say,” says the brief filed by Agudath Israel and other co-signers.

Mordechai Biser, Special Counsel for the Agudah, told Hamodia that if the law were to be upheld, it could have a direct effect on Jewish life.

“It’s an issue of whether the government can compel religious organizations to make statements contrary to their beliefs,” he said. “You could imagine a ‘parade of horribles,’ of the government forcing shuls, yeshivos or other organizations to make statements and post signs that express messages we would find deeply objectionable.”

In September 2012, the NYC Board of Health, during the administration of Mayor Michael Bloomberg, passed a regulation requiring mohalim to ask parents to sign a consent form espousing the New York City Department of Health’s view associating metzitzah b’peh with serious health risks, a position dismissed by leading medical experts and veteran mohalim.

Agudath Israel of America, the Satmar-affiliated Central Rabbinical Congress, the Chabad-affiliated International Bris Association and three mohalim then filed a lawsuit in federal court against the city, saying that the regulation violated their constitutional rights both to freely exercise their religion and to free speech — as it forced mohalim to disseminate a message with which they disagree, namely, that metzitzah b’peh, which they believe to be a requirement of Jewish law and a safe practice, should not be performed.

A federal appeals court later found that the regulation targeted a religious practice for special burdens, and therefore must be held to a higher legal bar, known as “strict scrutiny,” to see whether it violated the free exercise of religion guaranteed by the First Amendment.

The de Blasio administration later rescinded the regulation, ending the legal battle. Mr. Biser said that, should the FACT Act be ruled to be constitutional, similar scenarios could easily repeat themselves.

The filing says that the present case “is only the tip of the iceberg” in a rapidly increasing attempt by government to force religious organizations to make statements anathema to their faith, and puts the matter in a broader context.

“Religious organizations are often ‘countercultural’…Their beliefs usually lead them to embrace at least some values that clash with the prevailing values of the towns, cities, and states in which they are located—not to mention the values embraced at any given time by the federal agencies with which they interact,” it says. “Such clashes in values can often lead to attempts by governments to impose their own values—and desired messages—on religious organizations,” says the brief.

Citing many similar examples of government-compelled speech in states across the country, the brief states that the outcome of the case “is of enormous and increasing practical importance to religious institutions.”

Another point stressed is that the FACT Act was specifically enacted out of the state’s hostility towards NIFLA’s mission.

“The legislature is thus trying to discredit religious speech in favor of its preferred, secular message—that is, it is attempting to ‘use compelled speech as a weapon to run its ideological foes into the ground’,” the brief says.

An additional brief filed by a newly formed organization known as Jews for Religious Liberty calls attention to the specific threat posed to Orthodox institutions as a minority group, whose beliefs are often out of step with those of society at large.

Howard Slugh, who co-authored the filing, said that if such a precedent is allowed to stand, governments could use such laws to essentially stamp out practices they disagree with.

“They could decide to tell a kosher meat provider that they have to advertise on packages in 13 different languages that shechitah is cruel to animals; that would make it pretty hard to sell kosher meat,” Mr. Slugh told Hamodia. “Our community has successfully built up a robust network of institutions in this country, and Orthodox Jews function in all areas of the workforce, but laws like this are part of a systematic attack on the ability of all religious people to function in the public sphere and be true to their beliefs.”

The brief notes risks that laws such as these could pose to a host of Orthodox organizations that provide social services, medical assistance, counseling and the like.

“A state that has legal assisted suicide could require a Jewish hospice service to advertise that as an option,” Rabbi Mitchell Rocklin of Jews for Religious Liberty told Hamodia. “This case is very important. It’s the difference between us having freedom of speech or not, and whether that applies equally to religious institutions as well.”