Agudah Legal Newsletter
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Agudah Legal Newsletter June 16, 2021 REVIEW This is the inaugural edition of what we hope will be a new, periodic newsletter to attorneys, law students, and anyone interested in following some of the court cases and other legal matters that may directly impact Orthodox Jews in America today. Agudath Israel of America has merited to be involved in many of these cases. To the authors’ knowledge, no such periodical exists. In addition, this periodical will update you about unique, upcoming CLE programs for the Jewish practitioner. Perhaps your input can help plan the next session. Moreover, this periodical will inform you of the growing activities of Agudah Legal, LLC and its network of attorneys, which may offer you opportunities for community involvement, networking, or legal referrals, both pro bono and otherwise. To follow Agudath Israel’s broader national advocacy efforts, including legislative developments, sign up for the Weekly Window here, or the daily News from Agudah, here. In This Issue: Significant Legal Cases Educational CLE Programs for Attorneys Other Recent Activities Law Student Assistance The Network Significant Legal Cases Here is a sampling of some recent cases of interest to Orthodox Jews in America today. More information on these and other cases can be found by clicking the links, and here. Agudath Israel of America v. Cuomo While Agudath Israel typically intervenes in legal cases through the submission of amicus curiae briefs, it recently directly filed a lawsuit in federal court challenging Governor Cuomo’s unique restrictions on attendance at houses of worship, in particular the severe restrictions on shuls in the “red” and “orange” zones in New York State. Agudath Israel has been vocal and proactive in prioritizing safety during the pandemic: distributing hundreds of thousands of masks, helping spearhead plasma donations, and formulating dozens of health guidelines with a team of rabbonim and infectious disease specialists. However, Agudath Israel was strongly advised by its rabbonim not to let this discriminatory double- standard remain unchallenged. The case ultimately rose to the Supreme Court of the United States. The Supreme Court held that plaintiffs had made a “strong” showing that the challenged restrictions violated a “minimum requirement of neutrality” by specifically naming religious entities for restrictions while allowing secular businesses categorized as “essential.” Next, the Court noted that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Finally, the Court found that the government had not demonstrated that the requested relief would harm the public, as it did not claim that attendance at the applicants’ services resulted in the spread of disease. Thus, the Court held that enforcement of the restrictions on the religious services must be enjoined. Agudath Israel then litigated the case before the United States Court of Appeals for the Second Circuit, which issued a ruling instructing the district court to issue an injunction preventing the Governor from enforcing the restrictions that limit shul attendance to 10 or 25 people in certain zones, and to consider, in light of the Supreme Court’s decision, whether the Governor’s “percentage capacity” limits are a violation of the Free Exercise Clause of the First Amendment. The district court then issued a permanent injunction against enforcement of the Governor’s restrictions against the number of people who can attend worship services and the percentage capacity limitations. This case was a major victory for religious freedom, not just regarding unevenly applied COVID restrictions, but for the broader applications of strict scrutiny and irreparable harm as it pertains to religious practices. It was chiefly the work of Troutman Pepper, led by Avi Schick, with assistance from Agudath Israel’s in-house legal team. Special thanks to the synagogues Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, and Agudath Israel of Bayswater for joining the suit as additional plaintiffs. The case has reverberated throughout the country. InHarvest Rock v. Newsom, a case involving a California church that challenged Governor Newsom’s restrictions on the number of people allowed at houses of worship, the Supreme Court vacated a federal district court’s ruling against Harvest Rock Church, remanding the case to the United States Court of Appeals for the Ninth Circuit with instructions that the Circuit Court remand the case to the district court to reconsider the case in light of the Supreme Court’s decision in Agudath Israel v. Cuomo and Diocese of Brooklyn v. Cuomo (the case brought by the Diocese that the Supreme Court considered and ruled on together with Agudath Israel’s case). In a New Jersey case, Robinson and Knopfler v. Murphy, brought by an Orthodox Jewish rabbi and a Catholic priest challenging Governor Murphy’s restrictions on attendance at houses of worship, the federal district court for the district of New Jersey and the Third Circuit Court of Appeals denied the plaintiff’s request for an injunction. But the Supreme Court vacated the district court’s ruling and remanded the case to the Third Circuit, with instructions that the case be remanded to the district court to reconsider the case in light of the Supreme Court’s decision in Agudath Israel of America v. Cuomo and Diocese of Brooklyn v. Cuomo. Espinoza v. Montana This U.S. Supreme Court case involved a challenge to the constitutionality of a tax credit program that provides scholarship funding to students in religious schools, enacted by the state of Montana. Opponents challenged the program, claiming that it violated a provision in the Montana state constitution barring all government aid to religious institutions. The Supreme Court upheld the program, effectively ruling that states cannot discriminate against religious institutions in government supported programs under the Free Exercise Clause of the First Amendment, notwithstanding state constitutional provisions (commonly referred to as “Blaine Amendments,” after James Gillespie Blaine, Republican minority leader in the House of Representatives during the 1870s who first suggested them) to the contrary. The Court in its decision cited its earlier ruling in Trinity Lutheran Church of Columbia Inc. v. Comer, which stated that the Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” In Trinity Lutheran, the Court held that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.” The Court found that the application of Montana’s no-aid provision excludes religious schools from public benefits solely because of their religious status, that is, solely because they were religious schools. Under the Court’s previous ruling in Church of Lukumi Babalu Aye v. Hialeah, to pass muster under the Free Exercise Clause, government action must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. The Court concluded that Montana’s interest in creating greater separation of church and state than the federal Constitution requires “cannot qualify as compelling” in the face of the infringement of free exercise here, and that the Free Exercise Clause barred the application of the Montana no-aid provision. Agudath Israel had, with the help of members of its legal network, including attorney Mark Kurzmann and then law student Scott Whitman, submitted an amicus curiae brief to the U.S. Supreme Court, asking the Court to hear the case and rule in favor of the program. The ruling sets a very important precedent for state aid programs to religious schools throughout the country. 37 states have Blaine Amendments as part of their state constitutions, which were enacted, ignominiously, at the close of 19th century. Blaine Amendments were part of a thinly disguised anti- immigrant and anti-Catholic effort, aiming to disadvantage Catholic schools by barring governmental financial aid to their (and, incidentally, all) sectarian schools. As a result of Espinoza v. Montana, such provisions in state constitutions are likely unconstitutional, and states may not deny certain assistance to students attending religious schools for this reason. Our Lady of Guadalupe School v. Morrissey-Berru This U.S. Supreme Court case involved a challenge to the autonomy of religious institutions. The key issue involved the scope of the “ministerial exception,” a Supreme Court doctrine that protects religious schools and other religious institutions from lawsuits by employees hired to perform religious functions. The rationale for this exception is that under the First Amendment, courts ought not interfere in employment disputes between those holding ministerial positions with religious institutions and those institutions, to preserve and protect the autonomy and independence of religious institutions. Without the “ministerial exception,” courts would be free to intrude upon the autonomy of religious institutions, probe employment decisions that could be based on religious issues (such as the religious observance or lack thereof of an employee), and result in unconstitutional government “entanglement” with religion and religious institutions. The question in the case was whether the employee’s work was