DOJ: Free Exercise Clause Does Not Protect Kosher Meat Companies

Terence P. Jeffrey | March 27, 2014 | 6:43pm EDT
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Solicitor General Donald Verrilli addressing Supreme Court. (AP Image/Dana Verkouteren)

( - U.S. Solicitor General Donald Verrilli told the Supreme Court on Tuesday that the First Amendment right to the free exercise of religion and the Religious Freedom Restoration Act (RFRA)—which Congress enacted to guide the Executive Branch and courts in defending that right—would not directly protect kosher or halal meat-processing corporations from a hypothetical federal rule that by generally banning certain meat-processing practices effectively banned kosher and halal meat processing by incorporated businesses.

Verrilli told the court that the customers of a kosher or halal meat-processing company--not the company itself--would have cause to sue in such a situation.

But he did not directly say whether the Obama Administration believed that the customers of a kosher meat-processing corporation should prevail in such a case.

At the end of an exchange that takes up three pages in the transcript of the court’s oral arguments in the case of Sebelius v. Hobby Lobby, Justice Stephen Breyer pinned Verrilli down on a question first brought up by Justice Sam Alito.

Justice Stephen Breyer (AP Photo)

“Take five Jewish or Muslim butchers and what you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the Freedom of Exercise Clause that you’d otherwise have,” Breyer said to Verrilli.

“Now, looked at that way, I don’t think it matters whether they call themselves a corporation or whether they call themselves individuals,” said Breyer. “I mean, I think that’s the question you’re being asked, and I need to know what your response is to it.”

Verrilli’s answer to Breyer was to repeat the Obama Administration’s opinion that the First Amendment right to the free exercise of religion does not apply when people are doing business through a corporation.

“Well,” said Verrilli, “I think our response is what the Court said in Part 3 of the Lee opinion, which is that once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for-profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere.”

In Sebelius v. Hobby Lobby, the administration is trying to force the Green family, which owns Hobby Lobby, to comply with a regulation issued under the Affordable Care Act. This regulation, promulgated by the Department of Health and Human Services, says that health-insurance plans must cover, without copay, all Food and Drug Administration-approved methods of contraception.

These methods include two types of IUDs and the Plan B and Ella “emergency contraceptives" which can act as abortifacients, terminating a human life after conception.

The Greens, who are required under the Affordable Care Act to insure their employees or face at least $26 million in annual penalties, argued that by forcing them to provide coverage for abortion-inducing drugs the government is forcing them to violate their Christian faith, which tells them to protect, not destroy, innocent life.

(AP Photo/Ed Andrieski)

The administration has conceded in court that the regulation does force the Greens to act against their Christian faith. However, the administration argues that because the Greens operate their business through a corporation, they have no First Amendment right to practice their Christianity while doing business.

The National Jewish Commission on Law and Public Affairs submitted an amicus brief to the Supreme Court on the side of the Green family and Hobby Lobby. This brief--written by attorney Nathan Lewin—presented an actual scenario played out in New York State that more closely mirrors the Green family’s situation than the case of an incorporated kosher slaughterhouse.

The situation in New York involved a medical and dental clinic owned and operated by Orthodox Jews. The question: Could the state force this clinic to open on the Sabbath—thus forcing its Jewish owners to directly violate the teachings of their faith?

“An observant Jew may not direct his or her employee—be the employee Jewish or gentile—to labor on the Sabbath,” says the brief for the National Jewish Commission on Law and Public Affairs.

“A federal government directive to a Jewish employer—be he the owner of a business operated for profit or the manager of a non-profit charitable entity—requiring the employer to have employees work on the Sabbath would substantially burden the Jewish employer’s religious exercise,” says the brief.

“Under the Jewish Law the same religious prohibition that bars certain proscribed activity on the Sabbath in a for-profit business applies to a non-profit activity,” says the brief. “The religious sanction for violating the Sabbath is not reduced if the actor has a non-profit motive.

“A graphic illustration of the arbitrary impact on Orthodox Jewish observance that could result from the Government’s construction of RFRA is a complaint filed in 2006 before the New York State Division of Human Rights,” says the brief, citing Trotman v. The Ben Gilman Spring Valley Medical and Dental Clinic. “The complainant alleged that the operators of the clinic, which provided medical and dental help, discriminated unlawfully by closing the clinic’s Spring Valley and Monsey offices on Saturdays because of ‘the extremity of their own religious beliefs.’

“The Orthodox Jewish owners and operators of the clinics filed a verified answer based on rabbinic instruction that the clinics could not open on the Sabbath,” says the brief. “The religious freedom rights of the owner and operators of the clinics resulted in dismissal of the complaint.

“Could such clinics, operated by Sabbath-observing Orthodox Jews, be compelled to stay open on Saturdays if they were for-profit medical centers?” asked the brief. “Such a result is surely a blow to religious freedom but it would be possible under the Government’s interpretation of RFRA."

The National Jewish Commission on Law and Public Affairs’ example of forcing a clinic owned by Orthodox Jews to stay open on the Sabbath—thus forcing the owners to act directly against the teachings of their faith—was not brought up during the oral arguments in the Hobby Lobby case.

Justice Samuel Alito (AP Photo/Charles Dharapak)

Toward the end of the arguments, however, Justice Alito did bring up the example of a Danish law that prohibited kosher and halal meat-processing methods.

“Let me give you this example,” said Alito. “According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane. Now, suppose Congress enacted something like that here. What would a corporation that is a kosher or halal slaughterhouse do? They would simply…have no recourse whatsoever. They couldn’t even get a day in court. They couldn’t raise a RFRA claim. They couldn’t raise a First Amendment claim.”

In his initial response to Alito, Verrilli incorrectly assumed the law Alito was suggesting was specifically and narrowly targeted at kosher and halal slaughterhouses.

“Well, I’m not sure they couldn’t raise a First Amendment claim, Justice Alito,” said Verrilli. “I think if you had a targeted law like that, that targeted a specific religious practice, that—I don’t think it is our position that they couldn’t make a free exercise claim in that circumstance and so—.”

Justice Anthony Kennedy interjected: “Well, but you’re getting away from the hypothetical.  Justice Alito’s hypothetical was that the impetus for this was humane treatment of animals. There was no animus to religion at all, which in the Church of Lukumi, there was an animus to the religion. So, we’re taking that out of the hypothetical.”

“Exactly,” said Alito.

“Right,” said Solicitor General Verrilli. “Well, I think if it were targeted only at the practice of the kosher and halal practices, then I think you would have an issue of whether it’s a targeted law or not. But even if it is-- .”

Now Alito interjected: “Well, they say no animal may be slaughtered unless it’s stunned first, unless the animal is rendered unconscious before it is slaughtered.”

U.S. Solicitor General Donald Verrilli (AP Photo/Evan Vucci)

“Well, I think in that circumstance,” said Verrilli, “you would have, I think, an ability for the customer to bring suit. I think you might recognize third party standing on behalf of the corporation—on the corporations, on behalf of customers. So a suit like that could be brought.

“But even if you disagree with me at the threshold,” said Verrilli, “even if you disagree with us with respect to the kinds of risks that we think you will be inviting if you hold that for-profit corporations can bring these claims, when you get to the compelling interest analysis, the rights of the third party employees are at center stage here.”

Verrilli then made clear he was thinking about the “rights” of  third-party employees who want their employer to give them  insurance coverage for contraceptives and abortifacients—not the rights of employees who are thankful their employer is protecting them from having to violate their own religious faith by buying coverage for these things.

It was then that Breyer forced Verrilli to clarify if it was indeed the administration’s position that if “five Jewish or Muslim butchers” formed a corporation to do business they would have to “give up on that form the Freedom of Exercise Clause that you’d otherwise have.”

In reaction to Verrilli’s statement to the Court, Nathan Lewin, author of the brief for The National Jewish Commission on Law and Public Affairs, pointed to the Supreme Court’s 1961 cases of Braunfeld v. Brown and Gallagher v. Crown Kosher Super Market. These cases examined whether state laws could force Jewish-owned businesses to close on Sunday, even though they were also closed on Saturdays for the Jewish Sabbath.

None of the justices in those cases, Lewin said, took the position that a for-profit corporation could not make a religious freedom claim on behalf of its owner.

“In response to Justice Alito’s question regarding kosher slaughter the Solicitor General gratifyingly indicated that kosher consumers would be able to challenge restrictions on kosher slaughter under the Constitution and federal law even if corporate merchants could not,” Lewin told

“It was discouraging, however, that, when answering Justice Breyer, he said that kosher butchers who have gone ‘into the commercial sphere’ must live by the same rules that govern their ‘competitors,’” said Lewin. “Justices William Brennan and Potter Stewart did not agree with that proposition when, more than 50 years ago, they voted to uphold the constitutional right of Orthodox Jewish store-owners to keep their stores open on Sunday because their faith forced them to be closed on Saturdays.

“And the other Justices in 1961 only denied the Sabbath observers’ claims because if they were open on Sundays the Sabbath observers would have a competitive advantage over stores that complied with Sunday Laws,” said Lewin. “No one took the position that a corporate for-profit business could assert no claim to religious freedom on behalf of its religious owner.”

Rabbi Aryeh Spero, author of Push Back: Reclaiming Our American Judeo-Christian Spirit, was also critical of the argument that the Obama administration made to the court in the Hobby Lobby case.

“If in order to maintain religious freedom, religious people can not incorporate, then religious people are being denied a fundamental economic right,” said Spero. “One cannot safely be in the market place if he is told by the government that he can not incorporate. That is what Obama is basically enacting. He penalizes people for being religious. If they can't incorporate, many are not able to go into business, and it's certainly impossible to really expand your business beyond a mom-and-pop store.

“Obama is saying he and his administration have the right to tell religion how that religion can be practiced,” said Spero.

“Obama and colleagues believe, as they phrase it, only in 'freedom of worship' not freedom of religion,” said Spero. “They confine religious freedom to the four walls of a building for worship. They do not believe that outside these walls, one is free to practice beyond what Obama decides.

“Obamacare is unconstitutional precisely because it removes freedom of religion,” the rabbi said.

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