- - Wednesday, August 7, 2019

Since 2015, an anti-Kapparot activist has brought lawsuit after lawsuit — losing every time — targeting the kosher practices of small, Orthodox Jewish communities in Southern California. These lawsuits — similar to others filed in the New York City area — are all aimed at shutting down an ancient religious ritual that takes place in the days leading up to one of the most holy days on the Jewish calendar, Yom Kippur.

In a time when anti-Semitic rhetoric and activity is on the rise, ensuring that we understand and respect the religious traditions of all faiths, particularly that of our Jewish brothers and sisters, is paramount. 

One little known tradition is called Kapparot or Kaporos. It is an ancient ritual practiced by some Orthodox Jewish communities around the world, including several in the United States. It involves prayers for atonement, the rotating of a chicken over the practitioner’s head and the symbolic slaughter of the chickens.

The procedure is done in a kosher manner, which is considered humane under state and federal law.

Traditionally, the chickens were donated to feed the poor, but local health and safety restrictions often make this not feasible. Instead, the chickens are collected and used for other purposes, as Jewish law prohibits waste.

In California, for each lawsuit filed by an anti-Kapporot activist that has come to a conclusion, the courts have ruled against the activists. Yet, they keep filing. This month, they filed their sixth lawsuit aimed at shutting down an Orthodox Jewish synagogue’s practices.

The First Liberty Institute has been involved in this series of litigation since 2016, successfully defending a small synagogue in Irvine against two of these attacks, and we are currently defending the Hebrew Discovery Center synagogue in Woodland Hills, California. We also represented Agudath Israel of America to file a friend of the court brief in support of synagogues in New York. We are dedicated to protecting the religious liberty of all Americans.

In the first California lawsuit from 2015, a state court held that the plaintiffs lacked standing to challenge the law and also that the Free Exercise Clause of the U.S. Constitution prevented the plaintiffs’ targeted attack on this religious ceremony. 

Another state court, after a trial on the merits, rejected the plaintiff’s attempt to try to classify the religious ritual of the synagogue as a business practice. The federal courts, including the U.S. Court of Appeals for the Ninth Circuit, have rejected the lawsuits for more basic procedural issues.

But after four years of this, it doesn’t seem like these meritless lawsuits will stop.

In addition to the lawsuits, anti-Kaporos protesters have threatened to place Jewish worshippers under citizens’ arrest, they have invaded a practitioner’s home, they have stolen chickens, they have harassed the Orthodox Jewish community during holy days and they have vandalized a synagogue.

Legally, it makes no difference that some Jewish congregations practice Kapparot in a different way, or not at all. As the U.S. Supreme Court has repeatedly held, “[T]he guarantee of the Free Exercise Clause is ‘not limited to beliefs which are shared by all of the members of a religious sect.’” It would be inappropriate for secular courts to decide whose interpretation of Jewish law is correct.

More broadly, our right to worship must not be subject to a heckler’s veto or a popular vote. As Supreme Court Justice Neil Gorsuch said in an opinion last year, “It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.” 

These attacks on kosher practices must stop. As incidents of anti-Semitism increase, including violence against our Jewish brothers and sisters, Americans must work together to protect the ability of the Orthodox Jewish community to maintain the traditions that are essential to their flourishing in America. 

The courts should continue to rule in favor of religious liberty and against these unrelenting legal attacks on a minority faith group. It’s time to let this community worship in peace.

• Stephanie Taub is senior counsel to First Liberty Institute. Rabbi Netanel Louie is rabbi at the Hebrew Discovery Center in Woodland Hills, California. 

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