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 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 .

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 sufficiently religious to enable the school to be entitled to the exemption. The National Jewish Commission on Law and Public Affairs (COLPA), of which Agudath Israel of America is a member, submitted an amicus curiae brief on behalf of the school, drafted by noted constitutional attorney Nathan Lewin, calling on the Court to rule in favor of the school and a broader definition of who should be considered a “minister” and what constitutes “ministerial work” to qualify for the ministerial exception. The Supreme Court ruled in favor of the school, defining who qualifies to be a minister broadly for purposes of the exemption, as COLPA called for in its brief.

Council of Organizations and Others for Education About Parochiad, et al. v. State of Michigan, et al.: Constitutionality of State Reimbursement of Religious Schools for Performing State Mandated Services

This case, before the Michigan Supreme Court, involved the constitutionality of a Michigan state program that provides for state reimbursement of private schools for performing state-mandated services, including religious schools, despite a provision in the Michigan state constitution that bars all government aid to religious institutions. Agudath Israel submitted an amicus curiae brief drafted with the assistance of student Mark Pollak and Michigan attorney Steven Poltier, serving pro bono.

The Michigan Supreme Court upheld the program in a split decision that allows the state to continue to provide such reimbursement aid to religious schools.

Alliance to End Chickens as Kaporos, et al, v. Police Department, et al.

This case, decided by the New York State Court of Appeals, involved a challenge to the venerable custom of kaporos brought by an animal rights group. The group sought to have the New York City Police Department prevent kaporos from continuing. Agudath Israel of America submitted an amicus curiae brief in the case, defending the practice of kaporos and challenging the arguments of the plaintiffs. The brief was drafted primarily by the law firm of Vinson and Elkins, with assistance from the First Liberty Institute, who arranged for the firm to write the brief on behalf of Agudath Israel at the request of Agudath Israel.

Agudath Israel v. Jackson Township

As a result of a lawsuit brought by Agudath Israel, and a lawsuit filed by the U.S. Department of Justice, a federal judge granted a preliminary injunction against Jackson Township, New Jersey, for its discriminatory and unconstitutional ordinances banning yeshivos and eruvin in that community. The Court enjoined the enforcement of ordinances that Agudah claims prevented the construction of schools, dormitories, and eruvin, pending a final decision on the merits of the case. Spetner v. Palestine Investment Bank

Agudah Legal submitted an amicus brief on behalf of the plaintiffs, American Jews whose family members were injured or killed by Arab terrorists, whose families received financial rewards financed by Saddam Hussein’s Arab Liberation Front through the Palestine Investment Bank. The victims’ families brought a lawsuit against the bank under U.S. anti-terrorism statutes, seeking to hold the bank liable and seeking compensation for the victims and their families. Agudah Legal’s amicus curiae brief, joined by several other Jewish organizations, was prepared pro bono by Douglas Mitchell and Scott Whitman of the law firm of Jenner and Block, and supported the plaintiffs, arguing that Congress’s intent in enacting the anti- terrorist laws was to stop banks from financing international terrorism and that the lawsuit against the bank should be allowed to proceed.

Educational CLE Programs for Attorneys

Halacha Conference for Attorneys:

Agudath Israel organized a Virtual Halacha Conference for Attorneys. The well-attended conference featured Rabbi Zev Cohen, Rav of Khal Adas Yeshurun, and Rabbi Ari Marburger, Rav of Khal Anshei Faraday, who spoke about the interface of Beis Din and the legal profession; Rav Shraga Kallus, Rav of Khal Imrei Fi, who answered questions about Halacha and Hashkafa for attorneys; and Dayan Aharon Dovid Dunner, Dayan, Hisachdus HaKehillos of London, who spoke about emes and the practice of law. Participants received 3 CLE credits.

Future Educational Programs:

Agudah Legal is planning additional educational programs for CLE credits on issues of interest to attorneys in our community. Feel free to share your input and suggestions for topics and speakers at: [email protected]. Other Recent Activities

Employment Law and Sabbath Observance:

Numerous individuals facing challenges from their employers over their Sabbath observance in the workplace called upon Agudath Israel for assistance. Agudath Israel thanks Eric Stern, a New York employment lawyer, for taking on many of these cases, and guiding so many.

Helping Schools, Yeshivos, and Small Businesses Struggling During COVID:

Many Jewish schools, yeshivos, and small businesses required assistance applying for federal financial assistance such as loans from the Small Business Administration through the Payroll Protection Plan and Emergency Injury Disaster Loan Program. Chaim Book and his firm, Moskowitz and Book, helped many of these organizations, as did the accounting firm of Roth and Co.

Agudath Israel prepared and presented a series of webinars attended by over 1,000 people detailing navigating the application process and questions along the way.

Sabbath and Yom Tov Exams for College Students:

Agudath Israel provided legal support for many students who were initially denied their request for accommodation of their religious observance regarding classes or exams given on Shabbos or on Jewish holidays by their college, university, or national admissions testing agencies. In many cases, Agudath Israel provided the students with legal guidance that enabled them to have their request accommodated, and in other cases contacted the school or testing agency directly. These approaches, in the majority of cases, successfully attained accommodation for the student.

Advocacy for State Laws Mandating Accommodation of Religious Observance in Institutions of Higher Education:

Agudah has been involved in the drafting and successful advocacy for passage of state laws mandating accommodation of religious observance in institutions of higher education. Agudah has compiled alisting of all state statutes that mandate accommodation of religious observance in institutions of higher education.

Defending Patient’s Rights in Hospitals:

It is no secret that the secular perspective on end of life issues, time of death, the value of life, and if and when to perform certain medical procedures, does not always align with halacha and Orthodox Jewish values.

This pressure point is being especially challenged during the COVID-19 era, when hospitals are struggling to care for an influx of patients. Chayim Aruchim, a division of Agudath Israel founded to address this important need, intercedes on behalf of patients and their families with hospital legal counsel, doctors, and others involved in a patient’s care to help ensure that patients receive the care they and their families desire. Chayim Aruchim’s goal is to firmly encourage hospitals to respect the patient’s wishes, or, if needed, arrange for the patient to be transferred to a more accommodating hospital. Chayim Aruchim and Agudah Legal’s intervention recently helped save two young Jewish children from being removed from life support in major New York hospitals. If needed, attorneys are brought in to negotiate with hospital lawyers, litigating when necessary. We thank Mark Kurzmann, Michael Korsinsky, Mordechai Avigdor, Larry Loigman, and Lee Nigen, among others, for their assistance to patients and their families in several of these critical cases.

There is an acute need to expand the ranks of “Hatzolah Lawyers” – attorneys capable and available to help with these cases, especially where the patient’s family requires pro bono counsel. This literally can be a question of life and death, and when assistance is needed it can be needed immediately, as when a hospital threatens to imminently curtail life sustaining treatment. The Agudah has run CLE seminars for attorneys to help provide them with the legal knowledge to take on these cases. Good negotiating skills and the ability to litigate if necessary are the main requirements for successful handling of such cases. Attorneys motivated to help with these cases can also be connected to experienced hands if additional guidance is needed. If interested, please contact [email protected], or specify your interest in this area on the form here.

Defending Shuls and Other Religious Institutions Against Discriminatory Zoning and Land Use Restrictions:

As the community expands, shuls and other religious institutions have increasingly faced opposition from local zoning officials and others to their building or expanding. Agudath Israel has guided these institutions with preliminary steps to take, or to appropriate outside counsel, as necessary (where possible, at reduced rates). In other cases, Agudath Israel’s direct outreach to the appropriate government officials led to the requested accommodation being granted.

Helping Non-Profit Organizations:

Non-profit organizations in the community often require assistance properly self organizing, obtaining tax-exempt status, and ensuring that they are in compliance with all applicable government rules and regulations. Attorneys can be an invaluable community resource in this area. Agudah Legal has referred many organizations to the appropriate attorneys, and welcomes more attorneys with expertise in this area.

Providing COVID-19 Legal and Health Guidance:

Individuals and organizations now find themselves navigating a complex, hyper-local, and mercurial legal landscape as to what is allowed and not allowed due to COVID-19. How and when can one safely and legally open shuls, schools, child care centers, and day camps? What are the restrictions on visiting a loved one in the hospital? Can one have a wedding and what rules apply to it? These, and many other questions, have taken an interdisciplinary approach within Agudath Israel, with Agudah Legal interfacing with Agudah Advocacy, Yeshiva Services, Torah Projects, Communications and other Agudah divisions to form a panel of infectious disease experts and rabbonim at the outset of the pandemic, issuing dozens of guidance documents, videos, webinars and conference calls to yeshivos, rabbonim and community leaders to navigate every Yom Tov uptick, downtick and whatever else came out throughout the calendar. The Agudah offices received thousands of calls based on the information disseminated, throughout the country, and throughout the world. See asampling of this work here. We received and continue to receive many individual requests for guidance with these issues, and have been able to either directly provide the requested information or refer those contacting us to attorneys who can provide the proper guidance.

May the Rofeh Chol Bosor bring an end to the need for these activities!

Law Student Assistance

Undoubtedly, the few in-house Agudah attorneys cannot do it all. They, and the Orthodox Jewish community, are that much more impactful when the collective legal talent of the community is brought to bear on the issues facing us.

A growing cadre of law students have stepped up to meet the challenge, assisting Agudah Legal on behalf of the community on legal research and writing projectsWe thank those who have helped with these important projects. Here is a sampling of recent activities undertaken by law students:

Legal information on governmental COVID-19 restrictions on religious gatherings were researched and provided by students Benzion Edelman, Jacob Goldbrenner, Jacob Entin, and Isaac Schwarz.

Harvard Law student Benjamin Helfgott assisted with the research and drafting of an amicus curiae brief Agudath Israel submitted in Carson v. Makin, in which we argued that a Maine statute that excluded students attending religious schools from receiving state tuition assistance while providing such assistance to other nonpublic school students, was unconstitutional.

Eli Dubin, Yisroel Rosenberg, and Shlomo Rubinfeld of Columbia Law School, and Joseph Sommerfeld of the University of Pennsylvania Law School, researched state health care proxy laws and helped update and produce Halachic Medical Directives for many states. Shamai (Scott) Whitman, then a student at Georgetown Law School, helped research and draft our amicus brief submitted in Espinoza v. Montana (see above) in the Montana Supreme Court and in the U.S. Supreme Court.

University of Pennsylvania law student Michael Wittman updated Agudah’s legal memo listing state statutes providing for accommodation of religious observance by students in institutions of higher education, producing a comprehensive listing of all states with such statutes. Mr. Wittman also researched and produced an extensive legal memo listing all state statutes that discuss the individual with legal authority over the disposition of remains of someone who died without leaving clear instructions. This memo will be useful in helping ensure proper Jewish burials and preventing cremations.

Abraham Leiner and Shlomo Rubinfeld of Columbia Law School researched and provided Agudah Legal with a summary of laws and legal cases across the country that provide for accommodation of religious objections to autopsies. This can be helpful in preventing autopsies.

Many law schools encourage their students to engage in pro bono work. Such initiatives can satisfy this requirement, while providing a much needed communal service. Where possible, each student’s contribution to the brief or memo is duly acknowledged, which has proven beneficial to students when applying for legal positions.

The Network

To join the Agudah Legal network and receive updates on new opportunities to involved, click here. There is no obligation or admission fee to join. Even if you think we already have your contact information, please click on this link to ensure we have your complete, current contact information.

Law students can join or update their contact information by clicking here.

We also encourage you to take a few moments now and forward this newsletter to all lawyers and law students you know who might be interested in receiving this newsletter, learning more about Agudah Legal, and participating in any of the activities discussed herein, whether attending CLE programs, providing legal assistance to individuals and organizations in need (either pro bono or otherwise), researching and drafting amicus curiae briefs on matters of communal interest, and/or being kept informed of political advocacy efforts that could benefit from their involvement.

Essentially, the Agudah legal network is a vehicle for observant attorneys and law students to use their unique legal training and experience – at the commitment level of their choosing – to give back to the klal, while learning more about issues that may uniquely interest them.

For comments on this newsletter, or anything legal & Agudah related, email [email protected].

Sincerely,

Mordechai Biser, Esq. Avrohom Weinstock, Esq.

Special Counsel Chief of Staff