The Supreme Court Has a Chance to Protect Sabbath Observance

March 6 2019

In 1972, at the encouragement of a group of religious-liberty activists, Senator Jennings Randolph of West Virginia—a member of a small Baptist denomination that observes the Sabbath from Friday night to Saturday night—pushed for an amendment to the Civil Rights Act that would require businesses to make reasonable accommodations for employees’ religious observance. Although the amendment was made law, in 1977 the Supreme Court declined to apply it to the case of Larry Hardison, fired by TWA for refusing a Sabbath shift. Nathan Lewin, who helped to draft the language of Randolph’s amendment, hopes the court will now hear the similar case of Darrell Patterson, and rule differently:

Justice Byron White wrote the court’s [1977] ruling, and he was obviously concerned that the far-reaching interpretation that the court was then giving to the First Amendment’s prohibition against the “establishment of religion” conflicted with an interpretation of the law that could impose costs on private employers to satisfy the religious observances of their employees. White’s majority opinion declared: “To require TWA to bear more than a de-minimis cost in order to give Hardison Saturdays off is an undue hardship.”

First Amendment law was very different in 1977 from what it is today. [Then] Supreme Court majorities seemed to condemn even the most remote governmental assistance to religion. But that attitude was short-lived. . . . The court [in 2000] began an era in which the exercise of religion wins greater judicial respect. . . .

The de-minimis language has, over more than four decades, ruined the careers and employment prospects of thousands of religiously observant employees. There are many reported judicial decisions that fail to apply [the law] as Senator Randolph contemplated it. They permit employers to ban religious practices they dislike and to harm Sabbath observers and employees who have other unusual prescribed religious practices.

But close scrutiny of the Supreme Court’s recent actions raises hopes that these injustices will soon be corrected. . . . In a recent opinion explaining why they rejected a publicized religious-liberty case, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh said they are ready to “revisit” the Hardison ruling. . . . Resounding vindication of Darrell Patterson would correct a decades-long injustice, granting religious Americans the protection they so richly deserve.

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More about: American law, Freedom of Religion, Politics & Current Affairs, Sabbath, Supreme Court

Despite What the UN Says, the Violence at the Gaza Border Is Military, Not Civilian, in Nature

March 22 2019

On Monday, a UN Human Rights Council commission of inquiry issued its final report on last spring’s disturbances at the Gaza border. Geoffrey Corn and Peter Margulies explain why the report is fatally flawed:

The commission framed the events [in Gaza] as a series of demonstrations that were “civilian in nature.” Israel and its Supreme Court, [which has investigated some of the killings that occurred], framed the same events quite differently: as a new evolution in Israel’s ongoing armed conflict with the terrorist organization Hamas. Consistency and common sense suggest that the Israeli High Court of Justice’s framing is a more rational explanation of what occurred at the Israel-Gaza border in spring 2018.

Kites, [for instance], played a telltale role [in the violence]. When most people think of kites, they think of a child’s plaything or a hobbyist’s harmless passion. In the Gaza confrontation, kites [became] a new and effective, albeit low-tech, tactic for attacking Israel. As the report conceded, senior Gaza leaders, including from Hamas, “encouraged” the unleashing of waves of incendiary kites that during and since the spring 2018 confrontations have burned thousands of acres of arable land within Israel. The resulting destruction included fires that damaged the Kerem Shalom border crossing, which conveys goods and gasoline from Israel to Gaza. . . .

Moreover, the incendiary-kite offensive was an effective diversion from the efforts encouraged and coordinated by Hamas last spring to pierce the border with Israel and attack both IDF personnel and the civilian residents of the beleaguered Israeli towns a short distance from the border fence. . . .

The commission also failed to acknowledge that Hamas sought to use civilians as an operational cover to move members of its armed wing into position along the fence. For IDF commanders, this increased the importance of preventing a breach [in the fence]. Large crowds directly along the fence would simplify breakthrough attempts by intermingled Hamas and other belligerent operatives. The crowds themselves also could attempt to pour through any breach. Unfortunately, the commission seems to have completely omitted any credible assessment of the potential casualties on all sides that would have resulted from IDF action to seal a breach once it was achieved. . . .

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More about: Gaza Strip, Hamas, Israel & Zionism, Israeli Security, Laws of war, UNHRC, United Nations