Judge Andre Birotte Jr. Enables Yom Kippur Attack

It’s not that the orthodox Jewish ritual of Kapparot is the sort of thing that others, less-than-orthodox Jews or non-Jews, would find endearing. It’s the sort of ritual that only an extremely orthodox believer would appreciate. But that’s the nature of religion, believing.

Those who do aren’t trying to force anyone else to participate, but the plaintiffs in United Poultry Concerns v. Chabad of Irvine saw the opportunity to try to game the defendants’ religion to beat them.  But for Central District of California Judge Andre Birotte Jr., this should never have been tolerated.  Josh Blackman provides the full background:

On Thursday, September 28, 2016, United Poultry Concerns (an animal rights group) sought a temporary retraining order in the Central District of California. The suit, brought against Chabad of Irvine and Rabbi Alter Tenenbaum, requested injunctive relief to prohibit the temple’s practice of Kaparot in the period before Yom Kippur begins on sundown on October 10, 2016.

What’s the problem? First, if the plaintiffs wanted to raise their claim, which has ultimately failed every time they tried to raise it elsewhere, they could have done so well before, when the defendants weren’t constrained by their religion from doing what was needed to respond.

But the animal rights activists decided to game the defendants’ religious beliefs, that made it essentially impossible for them to mount a defense during the period of time created by the timing of the TRO application. Here’s the nuts and bolts of the game:

The twelve day period between September 28 and October 10 is (probably) one of the most hectic periods on the Jewish Calendar. First, the defendants were served process about the TRO on Saturday, October 1 (the Jewish Sabbath). During this time, no business can be transacted. The holiday of Rosh Hashanah stretched from Sunday, October 2 through Tuesday, October 5.  Likewise during this period, no business can be transacted. Wednesday,  October 6 was a fast day (no food or beverages can be imbibed). On Friday, October 7, the district court issued the ex parte temporary restraining order. Once again, the defendants were served process later that day, on the eve of the Sabbath when no work can be transacted.

During the telephonic hearing, the district court said he was “waiting” for the defendants to reply during the period between October 1 and October 7. As the above calendar shows, Rabbi Tenenbaum and Chabad of Irvine had higher priorities at this time than responding to an absolutely frivolous legal claim–one that has been filed and is currently pending in several state courts, with the activists losing every time.

As the old Hebrew National hot dog commercial said, the defendants answered to a higher authority. The action for an injunction was commenced, but religion effectively impaired their ability to respond and defend. Smart move by the plaintiffs to game religion in a secular action, but it required one thing: Judge Birotte to allow the plaintiffs to pick a time that would inherently burn the defendants and prevent them from defending unless they sacrificed their religious beliefs.

That put defendants in a double bind. if they were willing to forego their religion to fight the TRO, then their claim of religious necessity to perform their ritual might fail. And if they were unwilling to forego their religion, they would be unable to mount a defense to the attack. It was all just a matter of gaming the timing of the action to tie the defendants’ hands.

Judge Birotte had some choices to make. He could have rejected the TRO application because it was frivolous. He could have held it until after Yom Kippur, given that the plaintiff could have brought it well before the Jewish high holy days when the defendants would have been afforded an unfettered opportunity to respond, particularly since their gaming the defendants’ religious limitations was blatantly obvious. He did neither.

Aside from the fact that the plaintiff’s claim had no legal merit, the district court showed little awareness of the spiritual demands during this period of atonement. As proof positive, the court set an bizarre briefing schedule. Briefs were due the Tuesday morning before Yom Kippur, and oral arguments were scheduled for 10:00 a.m. the morning after Yom Kippur–at this point, it was too late to perform the ritual, so the entire motion would be moot!

But Birotte wasn’t done.

Even worse, the judge seemed irked that he had to hold a telephonic hearing on short notice at 3:30 p.m. PT on Tuesday. Keep in mind that the Kaparot ritual cannot be performed after sunset on Tuesday. So there was barely three hours to go until the entire motion was moot. The hearing did not start till nearly 4:00 p.m. (after counsel had already made their appearance). The hearing stretched about 90 minutes.  Then the judge recessed for about 45 minutes. Finally, a few moments before sunset, the district judge announced that he would dissolve the TRO.

To create the appearance that this wasn’t a matter of religious insensitivity, Judge Birotte compounded the problem by dissolving the TRO on the eve of Yom Kippur. Yay, the judge dissolved the TRO? Hardly.

By that point, it was impossible for the defendants to engage in the ritual, as they were already on their way to temple.Indeed, I was listening to the telephonic hearing, but had to depart early to go to temple. I was in suspense for some time about the outcome of the hearing–you can imagine how I was focusing my prayers. I should also note that an application for a stay to the 9th Circuit was fully briefed, but by stretching the proceedings out so long, it would have been impossible to even petition for an emergency stay.

If one was to read about this fiasco, it would appear that Judge Birotte was a mensch, dissolving the restraining order that never should have been granted just in the nick of time. It’s crap. It was dissolved, but too late for the defendants. It never should have happened, and never should have been allowed to happen this way but for Judge Birotte enabling the plaintiff to game the defendants’ religion.

While the ritual of Kapparot may not be to your liking, and while antisemitism may be fashionable among the social justice crowd, particularly in California, as well as the alt-right, this goes to the heart of the First Amendment’s protection of freedom of religion. You don’t have to like other people’s religious practices, but the force of the government can’t be used to prevent them.

But for Judge Birotte’s enabling, this game could never have been played. Because of Judge Birotte, the defendants’ free exercise of their religion was deliberately prevented. He is not absolved of his sin by the pretense of dissolving his TRO too late for the defendants. This was a disgrace, and one that at best reflects a federal judge’s complicit ignorance, and at worst antisemitism.  Religion may not be a favored constitutional right these days, but it remains a right and Judge Birotte’s enabling burned the defendants. It was intolerable.

25 thoughts on “Judge Andre Birotte Jr. Enables Yom Kippur Attack

  1. Derek Ramsey

    “The Times of Israel” article says: “Case continues in US district court, with animal rights group arguing it is illegal to kill chickens that won’t be eaten …. Chickens used in the ceremony were once given to the poor but are now generally disposed of because of food-handling laws.”

  2. fiver

    Maybe I’m missing the obvious, but couldn’t defendants have simply hired some lawyers who weren’t bound by these religious obligations?

    1. Keith

      “couldn’t defendants have simply hired some lawyers”

      For regular, run of the mill Orthodox Jews, this time of year is crazy from the perspective of time involved for preparation and the loss of work for holidays. But these are Chabad families. Not only do they do the same prep for their own families as everyone else, but they are responsible for everyone in their community that will be showing up. As opposed to regular congregations that run services and send their members home to their own meals, etc… these folks run their own show and then feed the community and do everything involved for the holiday for the unaffiliated they bring in. The amount of time involved for them at this time of year, makes simple tasks like hiring a lawyer a distant priority.

      But let’s not kid ourselves, the custom has been around for centuries. Which is enough time for the plaintiffs to have brought their suit a few days earlier. This was attack by calendar and it couldn’t have worked without the Judge allowing it.

    2. Jonathan

      Having others do work for you is also problematic for observant Jews. I’ve been asked, for instance, not to work on a brief for an observant client during the Sabbath. This was outrageous in every way.

  3. Cashew

    Merely the latest in completely believable unbelievable news. I wish I could say I am even a little bit surprised.

  4. Ted Kelly

    “It’s a horrible, barbaric ritual. The chickens suffer immensely. And we don’t agree with it,” says Ronnie Steinau. Well I went to YouTube to see Kapparot for myself. The videos were tamer than the last chicken slaughter I participated in, including the PETA video titled “CHICKEN HOLOCAUST!!!” I remember a favourite bumper sticker back when leg hold traps were the target of activists that said “Use leg hold traps on social activists”. Never have I agreed more.

    1. SHG Post author

      The ultra-orthodox are very different from reform or cultural Jews, but make up some entirely different, but legit, religion and it’s the same thing. You get to practice your religion in America, even if PETA doesn’t like it. Even if it was “horrible, barbaric,” it’s still religion.

      1. D-Poll

        Sure, you say that, but just try doing a human sacrifice for Disablót and suddenly everyone gets stroppy.

          1. B. McLeod

            There are, of course, the cults that subscribe to human sacrifice, and they present the same issues to us that they did to the Brits and the Romans. But, the existence of the cults of the day who pursued this would almost certainly have been known to our nation’s founders.

  5. Richard G. Kopf


    Take it from a German goy, anti-Semitism is buried so deep in the fabric of American life that irreparable injury to a fucking chicken is all you need to punish jews for being jews. After, all, Chickens Lives Matter, Jews Not So Much.

    The TRO motion should have been denied 10 seconds after it was filed. The well-planned actions of counsel for the Plaintiffs is especially disgusting. I hope the judge was just an ignorant dumb ass.

    All the best.


    1. SHG Post author

      I tried to be kind to Judge Birotte by allowing for the possibility that he failed to grasp the religious implications of the timing of the TRO. I don’t really believe that any judge is that clueless. And it’s not like it wasn’t pointed out to him, and he didn’t give a damn.

    2. David Meyer-Lindenberg

      This German Achteljude agrees. The assembled geniuses of the Arab world tried this in 1973 and got slapped down. The idea hasn’t gotten any smarter or fresher since then, and you’d hope a judge of all people would cottoned on, especially when defendants’ counsel points it out for them. Despicable all around.

  6. maz

    “while antisemitism may be fashionable among the social justice crowd, particularly in California”

    And here I was trying to think of an SJW-type among my acquaintances who *isn’t* Jewish…

    1. a6z

      Anti-Semitism is pretty popular among California Jews. They are fooling themselves about what it is. They think they only despise that other kind of Jews. You know. Zionists.

  7. Mr. Median

    “Save the trees, save the bees, save the whales, save those snails.” Humans are a different matter.

  8. Ted Kelly

    Slow down, Asher. “Horrible and barbaric” was a direct quote from Ronnie Steinau in the Atlantic article, the woman whose group applied for the TRO. I watched some videos of the ritual and disagreed with her characterization. Btw, you may be shocked to learn that Steinau is a reformed… Meat eater, and like the rest of her organization’s founders, part of the Jewish reform movement.

    1. SHG Post author

      I decided to trash Asher’s comments (which I fished out of the spam folder in the first place), as there’s no reason why one hypocritical asshole should be allowed to disgrace a religion.

  9. Pingback: October 19 roundup - Overlawyered

  10. John Thacker

    Under current Supreme Court precedent (post 1990) is it clear that they would have a First Amendment claim, particularly if the animal cruelty laws were claimed not to target religion specifically, merely that the religious practice violated neutral laws? They would have a RFRA claim, but I don’t think that California has a state RFRA.

    I have no doubt that the animal rights people feel that they are as injured by this as people who are not sold flowers or a cake for their wedding feel, and California law may well enact their feels.

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