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.