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October 21, 2014 / 27 Tishri, 5775
At a Glance

Posts Tagged ‘First Amendment’

Is Taxpayer Support For Religious Schools Constitutionally Required?

Friday, June 20th, 2003

In its last term, the United States Supreme Court narrowly upheld the constitutionality of publicly financed tuition vouchers for parochial school education. In effect the court said that if a public authority decided to include parochial schools in a program of general application, the
First Amendment’s requirement of separation between church and state did not prohibit it.

This past Monday, the Supreme Court agreed to take a case for review presenting the flip side of the issue. That is, is a public authority barred by the First Amendment from discriminating against religious activity and required to include students studying religion in a general scholarship program?

The case involves the State of Washington’s rejection of an application for a state scholarship
submitted by a student who was otherwise eligible, on the ground that he was seeking a degree in theology. A provision of Washington’s state constitution bars such public aid.

This is one of those momentous cases that comes along every once in a very long while. On the one hand, there is the distinct possibility that the Court will affirm, at long last, that religious
activity must be treated financially by government on the same basis as non-religious activity. On the other hand, as many have pointed out, there are always strings that are attached to government largesse.

So while we certainly believe that religious education should not be discriminated against, and
would welcome a ruling to that effect, we are mindful that it would not be the end of the matter. We must also ensure that the fundamental independence of religious education from
government interference must be preserved as well.

Unfortunate Kosher Food Decision

Friday, June 28th, 2002

As The Jewish Press reported last week, a three judge panel of the United States Court of Appeals for the Second Circuit sitting in Manhattan has thrown out provisions of New York’s Agricultural and Markets Law which since 1915 has prohibited the fraudulent selling of food as kosher. The court’s reasoning was essentially that inasmuch as the definition of “kosher” was defined in the law as meeting “Orthodox Hebrew requirements,” enforcement by state authorities would cause “excessive entanglement” between government and religion in violation of the First Amendment.

It is a sad state of affairs that as it now stands, anyone can sell even pork meat as kosher and there isn’t anything anyone can do about it. The irony of the court’s decision is that it belies the reality of what enforcement really entailed. While it is true that the origin of the standards were religious legal codes, state inspectors followed a totally secular protocol. That is, there was never any day-to-day resort to the ancient tomes or to rabbinic authority, only to a long-settled menu of objective things to look for.

Nor is there any real merit to the court’s concern that the definition of kosher in terms of “Orthodox Hebrew requirements” elevates Orthodox standards over non-Orthodox standards, again involving the state in doctrinal matters. If the word “kosher” standing alone is not to be a misleading standard, it must imply the highest standard of all groups. That is, an Orthodox Jew is misled by the designation “kosher” if Orthodox standards are not met. On the other hand, a Conservative Jew is not misled if Orthodox standards are met. Once again at bottom this is a practical, rather than a religious issue.

Attorneys involved in the case say that an attempt will be made to get the full court of appeals to reconsider the decision of the three judges. Failing that, an appeal to the United States Supreme Court is likely. We would hope that ultimately, there will be a restoration of protections for the kosher consumer. It seems inconceivable that because of a wooden, strained view of church-state separation, from now on commercial opportunists can with impunity trick kosher consumers into paying premium prices for something that is falsely labelled as such.

Appeals Court Rules Rabbi Cannot Be Sued For Disclosing “Confidential” Information

Friday, December 28th, 2001

As we went to press on Tuesday, we learned that the New York State Court of Appeals has ruled that a rabbi cannot be sued for having disclosed confidential information that a congregant gives him in a counselling session if the rabbi believes that religious law requires the disclosure.

At issue was whether a New York law which establishes the so-called “priest-penitent” privilege ? which protects a clergyman from having to testify in court as to information imparted to him in his official capacity ? could be invoked by the congregant if the clergyman disclosed the information outside of court because he believed religious law required the disclosure. According to court documents, the particular information bore directly on some fundamentals of the marital relationship which the rabbi believed he had an obligation under Jewish law to disclose.

The unanimous decision of the court was that under these circumstances a lawsuit would require a secular court to decide the rabbi's obligations under Jewish law ? something secular courts could not do consistent with the First Amendment's free exercise of religion clause.

A spokesman for The National Jewish Commission on Law and Public Affairs (COLPA), hailed the decision one that will facilitate the willingness of rabbis to engage in pastoral counselling in accordance with Jewish law without fear of being sued for following its requirements. COLPA filed a brief in the case on behalf of 7 national Orthodox Jewish organizations urging the result reached by the court. The brief was written by noted constitutional lawyer, Nathan Lewin.

The decision is an important one and we will have more to say next week.

Printed from: http://www.jewishpress.com/indepth/editorial/appeals-court-rules-rabbi-cannot-be-sued-for-disclosing-confidential-information/2001/12/28/

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