The decision earlier this month by a federal appeals court to uphold the conspiracy-to-commit-kidnapping-and-violence convictions of several rabbis for their roles in an elaborate FBI Get-related sting operation signals that the viability of a fundamental protection for the free exercise of religion is in jeopardy.
The prosecutions were marked by government conduct that should shock the consciences of those believing in fair play, and the course of the trial and appellate proceedings offer no hope the courts will make things right.
In 1990, the late Justice Antonin Scalia wrote an opinion for the United States Supreme Court that abandoned the longstanding First Amendment constitutional principle that religious practice could not be infringed upon by government unless there was a “compelling public necessity” to do so.
No longer would religious motivation entitle one to a constitutionally required exemption from a law of general applicability.
However, Congress in 1998 enacted the Religious Freedom Restoration Act. Popularly referred to as “RFRA,” the law prohibits the federal government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
Although not generally known, even by those familiar with the existence of RFRA, courts have held that RFRA applies to religiously motivated activity that runs afoul of the criminal law. As an example, in one case a federal appeals court would not allow the criminal prosecution of a Native American church for its use of marijuana in a religious ceremony.
In the case of the rabbis, the FBI created out of whole cloth, complete with the production of a forged ketubah, a marriage in which the non-existent wife was an agunah at the mercy of a non-existent recalcitrant husband. The FBI deceived a prestigious bet din and its chief judge, resulting in the bet din’s issuance of baseless hazmanot (summonses) and a seruv (contempt order).
All this was designed to entice the rabbis into taking action – even extreme measures – against a non-existent husband in order to get him to give a Get to a non-existent wife. That was the essence of the sting – a pure fiction concocted by the FBI for the purpose of enticing and entrapping the unsuspecting rabbis. Surely the rabbis could legitimately argue that they were taken in by the FBI’s outrageous conduct.
Would the FBI have even dreamt of pursuing such a “sting” prosecution if it entailed the elaborate deception of a Sharia religious court or a Catholic ecclesiastical court? Would the FBI have forged religious documents and deceived religious courts in order to secure baseless religious court rulings to use against imams and priests?
We think not. Not by a mile.
And was luring the rabbis into a conspiracy charge by creating a fictive reality consistent with RFRA? Certainly there was a significant and well-recognized religious premise for the rabbis wanting to help free an agunah, a great and holy mitzvah. Were the elaborate multiple deceptions devised by the FBI the “least restrictive means of furthering [the] compelling governmental interest” in preventing conspiracies to commit violence? Again, we think not.
Sting operations are ordinarily directed at those who are ready, willing, and able to commit a particular crime should the opportunity arise. Why was it necessary to concoct an elaborate scheme that could be expected to unduly play on the heartstrings of the compassionate?
Why wouldn’t it have sufficed for the FBI to have warned the rabbis or even to have obtained a civil court injunction without resort to the use of a forged ketubah, baseless hazmanot, a baseless seruv – and without deceiving a prominent religious court and its chief rabbinic judge?
It is important to note that, in addition to the sting-related charges, the rabbis were also tried on the complaints of two men who claimed they were kidnapped and attacked in order to force them to give a Get. Significantly, however, the rabbis were acquitted of those charges. In other words, the rabbis were absolved of having committed any actual crimes.
This kind of boundless governmental effort to manufacture a criminal enterprise and the wholesale intrusion into a Jewish religious court and the entrapment of rabbis should be of great concern to all of us.