Supreme Court Takes On Affordable Care Act Again

the PillSince its founding in 2003, Jewish Social Policy Action Network (JSPAN) has been in the forefront of the Jewish community in supporting the right to reproductive freedom and protecting religious liberty. Sometimes we take the lead by filing amicus briefs in the Supreme Court, as we did in the Hobby Lobby case, arguing that private corporations should not be able to claim a religious right to deny their employees access to reproductive healthcare services. At other times we work in coalition with Jewish and non-Jewish groups.

Recently JSPAN joined with the ADL in asking the Supreme Court to uphold the provision in the Affordable Care Act’s contraception mandate that requires a religious institution opposed to contraception to sign a waiver stating such, after which employees can receive it through third parties.

In Zubik v Burwell, petitioners claim that merely signing a waiver violates the signers’ religious tenets, and is thus unconstitutional according to the Religious Freedom Restoration Act. JSPAN heartily agrees with the ADL that signing the waiver does not pass RFRA’s “substantial burden” test. Moreover, finding for the petitioners would prevent employees who favor the use of contraceptives from exercising their own freedom of religion. An ADL press release said, “Allowing one’s religious beliefs to be an effective veto of virtually any federal law or rule would undermine our country as a nation of laws.”

Joining JSPAN in recognizing this as an issue of great interest to Jews were Bend the Arc (of which JSPAN is an affiliate), Keshet, National Council of Jewish Women, and Women’s League for Conservative Judaism.

Rabbi George Stern, Executive Director
Rabbi Seymour Rosenbloom, President

Reinterpreting the Religious Freedom Restoration Act

070314.N.DNT_.HobbyLobby%201_0[1]Blowback for the Jewish Community?

Jeffrey I. Pasek spoke recently to a large and completely engaged audience at Congregation Adath Jeshurun in Elkins Park about the Religious Freedom Restoration Act (RFRA) and why Jews should care about it. Pasek, a partner in the Labor & Employment Group of the law firm Cozen O’Connor and a longtime leader in Jewish communal affairs, explained the modern legal history of religious freedom under the First Amendment and its statutory sequel, the RFRA. He discussed the Supreme Court’s unexpected expansion of this law and the potentially troubling consequences it could have. [Read more…]

Kosher Food for Prisoners: A Question of Money?


Fewer than 1% of inmates request kosher meals. (San Quentin Prison, California)

— by Kenneth R. Myers, Esq.

Last week, an Orthodox Jewish prison inmate ended his four-year-old lawsuit seeking a kosher diet, thanks to a recent court ruling requiring Florida to provide all Jewish prison inmates with a kosher diet.

This case is one of several that prison inmates and the U.S. Department of Justice have brought in the last few years, where state prisons have withheld the option of kosher meals for Jewish inmates.  

The cases are brought under the Religious Land Use and Institutionalized Persons Act of 2000 (commonly referred to as RLUIPA) — the federal law that seeks to protect the right of inmates and other institutionalized persons to free exercise of religious practices. However, some state prison systems are slow to learn.

Providing kosher food for inmates is reported to about double the cost of the usual prison diet: an increase of between $4 and $5 per day for each inmate, according to the prisons. However, very few inmates (typically fewer than 1%) request kosher meals, according to the experience reported in the court decisions.

The courts therefore reject claims by the prisons that the cost of providing kosher food is burdensome. But the details of the cases suggest that there is more than cost at issue.

More after the jump.
Various prison systems have put up different bars to deter inmates from securing kosher meals:

  • One prison requires the inmate to pass a test of knowledge of the rules of kashrut;
  • another prison admits an inmate to the kosher food program, but removes him if he eats any “non-kosher” food (although the prison management does not appear to have enough knowledge to judge that question);
  • yet another prison’s management examines the inmate’s historic practices and reaches its own determination of the “sincerity” of the inmate’s beliefs;
  • and some prisons offer inmates the ability to purchase kosher food at their own expense.

In recent cases, the Justice Department and Jewish prisoners have prevailed over the state prison officials as to all of these arguments and stratagems. Yet, questions will continue to arise under RLUIPA, and the earlier-related Religious Freedom Restoration Act (familiarly known as RFRA).  

These statutes legislate religious accommodation — specifically, relief from some legal requirement of general application, where that relief is practical. Simple? Not at all.

The range of circumstances that give rise to RFRA and RLUIPA claims is great and still growing (most recently in the form of dozens of challenges to the Affordable Care Act). The questions of what constitutes a sincere religious belief, and more importantly, what is a substantial burden on religious practice, draw the courts into an unfamiliar territory.  

Each accommodation ordered by a court, and looked at differently, is a small establishment of one religion over all others. So the courts assiduously avoid “entanglement” by becoming involved in deciding religious issues, except for practice mandated under these two statutes.

The author is a member of the Church-State Committee of the Jewish Social Policy Action Network, an organization which frequently participates in religious liberty cases as amicus curiae (“friend of the court”), and a director of the Philadelphia Jewish Voice.