New York, New Jersey, and California Should Increase Their Protections for Religious Freedom

Jan. 29 2019

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which provides a general exemption from laws that place an unnecessary burden on the free exercise of religion. Since the RFRA only applies to federal laws, many states have passed their own version of it, but several states with large Jewish populations have not. In New York, many Orthodox Jewish schools are currently protesting new regulations on private education that, they argue, threaten their freedom to structure religious education as they see fit. A state RFRA could have prevented the resulting conflict, note Mitchell Rocklin and Howard Slugh, and would benefit religious Jews in other ways as well:

[In many instances], Jews have used the [federal RFRA and its state equivalents] to protect their religious freedom. For instance, Jewish military personnel often rely on it to obtain kosher meals and Shabbat accommodations. RFRA is taught in military chaplaincy curricula and is a basis upon which chaplains and commanders accommodate service members of all faiths.

RFRA has a sister statute: the Religious Land Use and Institutionalized Persons Act (RLUIPA). That statute functions in effectively the same manner, but in limited circumstances it also applies to states. Jews have used RLUIPA to defend their rights to build synagogues and religious schools in the face of restrictive zoning laws. Jewish prisoners have used RLUIPA to obtain kosher food, sacramental wine, and other necessary religious goods. One way to highlight the importance of RFRA is to explore how vulnerable Jews are in instances where it does not apply.

In 2016, in California, an animal-rights group sued to prevent a rabbi from performing the kapparot ritual before Yom Kippur, a practice in which some Jews slaughter chickens and then use the meat to feed poor families. In this case, the plaintiffs sued under a generally applicable unfair-competition law to prevent the rabbi from killing chickens. In its legal briefs, an animal-rights group acknowledged that if California had an RFRA law, the rabbi might have a defense. But because California has no such protection, the group claimed that the California need not accommodate religious observances. The group succeeded in dragging out the litigation long enough to prevent the rabbi from performing the ritual that year.

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More about: Benjamin Netanyahu, Israeli Election 2019, Israeli politics