According to the landmark Supreme Court decision in the case of Employment Division v. Smith, laws that restrict religious practices are constitutional so long as they are “neutral” and “generally applicable,” and don’t single out religion per se, or a particular religion. Justice Samuel Alito recently challenged this ruling, bringing as examples laws that might prohibit kosher slaughter, circumcision, or the wearing of head coverings in court. Such legislation, Alito noted, would severely restrict Jewish (and Muslim) practice, yet could still be written in a way that would be acceptable according to Smith. Josh Blackman, Howard Slugh, and Mitchell Rocklin explore these examples:

A neutral law to prohibit ritual kosher slaughter would likely be constitutional under Smith. . . . In recent years, animal-rights advocates have argued that ritual kosher slaughter inflicts undue pain on animals. In 2019, Belgium required that all animals be stunned before they are slaughtered. The stunning may involve an electric shock, or, for larger animals, firing a metal rod into the brain. This law was designed to prevent animals from feeling pain. But the laws of kashrut [prohibit such practices].

In effect, Belgium made it illegal to perform kosher slaughter. Muslims also argued that the law prohibited ritual halal slaughter. Yet the European Court of Justice, the highest court of the European Union, upheld the Belgian law. The court found that the Belgian laws “allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion and are, therefore, proportionate.”

Other countries have followed Belgium’s lead. Denmark, Iceland, Norway, Slovenia, and Sweden have enacted similar bans without exemptions for religious communities.

If this is so, why does the Anti-Defamation League (ADL)—along with other Jewish groups—insist on supporting Smith?

The ADL worries that granting exemptions from anti-discrimination laws, for example, could harm vulnerable minorities.

While we acknowledge the force of this argument, the ADL’s fear is, in fact, ultimately unfounded. Even if Smith were overturned, religious liberty would not automatically trump the state’s other interests. In a post-Smith world, the government could still burden religious exercise if it demonstrated that doing so was the least restrictive means to further a compelling government interest. This analysis would require a case-by-case consideration. Overruling Smith would not lead to the elimination of the core anti-discrimination laws that allow unpopular minorities to fully participate in American life.

Tamir Hayman analyzes the latest reports about an offer by Hamas to release three female soldiers in exchange for 150 captured terrorists, of whom 90 have received life sentences; then, if that exchange happens successfully, a second stage of the deal will begin.

If this does happen, Israel will release all the serious prisoners who had been sentenced to life and who are associated with Hamas, which will leave Israel without any bargaining chips for the second stage. In practice, Israel will release everyone who is important to Hamas without getting back all the hostages. In this situation, it’s evident that Israel will approach the second stage of the negotiations in the most unfavorable way possible. Hamas will achieve all its demands in the first stage, except for a commitment from Israel to end the war completely.

How does this relate to the fighting in Rafah? Hayman explains:

In the absence of an agreement or compromise by Hamas, it is detrimental for Israel to continue the static situation we were in. It is positive that new energy has entered the campaign. . . . The [capture of the] border of the Gaza Strip and the Rafah crossing are extremely important achievements, while the ongoing dismantling of the battalions is of secondary importance.

That being said, Hayman is critical of the approach to negotiations taken so far:

Gradual hostage trades don’t work. We must adopt a different concept of a single deal in which Israel offers a complete cessation of the war in exchange for all the hostages.