This column by ACRU Policy Board member Hans von Spakovsky and Tiffany Bates was published March 11, 2016 by The Daily Signal.
Last week, over the dissent of Justice Samuel Alito, the U.S. Supreme Court declined to hear a case involving a prison’s refusal to allow a Jewish man to study the Torah with others because of the prison official’s erroneous interpretation of Jewish doctrine.
Israel Ben-Levi, an inmate in the Hoke Correctional Institution in North Carolina, sought a quiet place to have a Jewish Bible Study one hour per week with two other Jewish prisoners. The prison denied his request, because in the prison official’s interpretation of Jewish doctrine, a Jewish Bible Study requires a minyan — 10 adult Jews — or the presence of a rabbi.
After the director of chaplaincy services “personally exchanged emails” with a rabbi, the prison implemented a policy prohibiting Jewish prisoners from meeting if they did not meet those requirements.
Ben-Levi filed a complaint in federal court alleging that the prison’s policy violated his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000. The district court granted summary judgment for the prison, holding that the policy did not substantially burden Ben-Levi’s religious exercise because he was still permitted to worship and study in private.
The district court further held that even if the policy had burdened Ben-Levi’s religious exercise, the prison’s interests in “maintaining order, security, and safety” made summary judgment appropriate. The United States Court of Appeals for the Fourth Circuit affirmed the lower court’s decision in a one paragraph opinion.
To be sure, prisons have broad discretion to ensure that prisoners aren’t using religion as a pretext to scheme or to “mask their gang activity.” The Supreme Court has stated that “[W]hen a prison regulation impinges on inmates’ constitutional right, the regulation is valid if it is reasonably related to legitimate penological interests.”
But as Alito pointed out, the prison “imposed stringent restrictions on Jewish group meetings that it did not apply to other religious groups.” Officials did not offer any reason to believe that “a Jewish study group is more likely than a Christian or Muslim group to impede order.”
No Other Explanation
The prison offered no reason for the policy for Jewish prisoners other than its misinterpretation of Jewish doctrine. In one of their briefs, the prison officials stated that they “informed” Ben-Levi that the religion of which he was a practicing member had these requirements and that prison policy required “either a minyan or the presence of a qualified leader (such as a rabbi) in order for a Jewish study group to take place.” This policy is the result of the prison intentionally treating “different religions differently based on its perception of the importance of their various tenets.”
Alito pointed out that that Ben-Levi has “unmistakably indicated that he prefers group study without a minyan to no group study at all” and that “it is not for [the Court] to say that the line [Ben-Levi] drew was an unreasonable one.”
Unable to Assemble Quorum
In fact, Ben-Levi couldn’t assemble a quorum of ten Jews and he also couldn’t find a rabbi because of “the paucity of Jews at Hoke and in the surrounding community.” So he was being “completely deprived of the ability to pray or study with other Jewish inmates.” Importantly, neither the district court nor the appeals court questioned “the sincerity of” Ben-Levi’s religious beliefs.
According to Rabbi Mitchell Rocklin and attorney Howard Slugh “No major denomination of Judaism prohibits the study in question.” But even if that was not the case, as the two men aptly point out that: “The court’s specific misunderstanding — as baffling as it may be — is mostly beyond the point. The court’s confusion highlights why judges should not be in the business of deciding theological questions. That might be the role of Saudi Arabian courts, but it is not the role of the American judiciary.”
Alito found the Supreme Court’s “indifference to this discriminatory infringement of religious liberty…disappointing.”
Little Sisters of the Poor Case
But the Supreme Court cannot remain indifferent about infringement of religious liberty for much longer. On March 23, they will hear extended oral arguments in Little Sisters of the Poor Home for the Aged v. Burwell, a challenge by a group of Catholic nuns and six other religious employers to Obamacare’s abortion/contraception mandate.
The mandate requires that employers provide employees with contraceptives, sterilization, and abortion-inducing drugs and devices as a part of their health care plan. Although the government has exempted houses of worship or their “integrated auxiliaries” from this mandate, it has not exempted other nonprofit religious organizations like the Little Sisters. Instead, such religious organizations must “self-certify” that they are religious employers and have religious objections.
That certification does not exempt them from the mandate; instead, it shifts responsibility for complying to either the religious employer’s insurer or, for a self-insured employer, to the third party administrator for the self-funded plan. The religious objector will still end up ultimately paying for the abortion and contraceptive coverage either through the cost of insurance premiums or from the funds the employer provides to the third party administrator to pay health claims.
The Little Sisters object to the government hijacking their health care plan and forcing them “to facilitate the provision of contraceptive coverage through their own plan infrastructure.” They believe this regulatory method “merely offers [them] another way to violate their religion.”
While the government may believe its so-called “accommodation” sufficiently distances the Little Sisters from acts they find morally objectionable under their religious beliefs, the Little Sisters disagree. And as the parties point out in their briefs, the government “has ‘no business’ making that determination” about the tenets and principles of their particular religion.
As Slugh and Rocklin point out:
“Using government force to police the ‘purity’ of religious teaching is the job of ayatollahs, not judges. The notion that the government could use its alleged concern for religious purity to justify discrimination against disfavored religious adherents ought to terrify anyone concerned with religious liberty.”
Government officials are not the religious police.
Let’s hope the Supreme Court doesn’t deem itself prophet, priest, and king and lets the Little Sisters serve the poor without violating their faith.