Is this a religious practice as opposed to cultural ? I think the answer is that kapparot is a "custom" which is observed by many as opposed to a strict legal requirement Nevertheless in Judaism custom has the status of law. Here's a link regarding the practice
http://m.chabad.org/holidays/JewishNewYear/template_cdo/aid/989585/jewish/Kaparot.htm Rabbi Michael Simon Temple Beth Kodesh Boynton Beach, Fl (954) 257-6159 www.TempleBethKodesh.org The Blue and White Road: A Path To a Fulfilling Jewish Life Now Available on Amazon.com > On Oct 9, 2016, at 4:23 PM, Michael Masinter <masin...@nova.edu> wrote: > > Paul raises a question that surely would trigger an interesting debate among > rabbinical authorities and Talmudic scholars, but I suspect from Hosanna > Tabor and from the contraception mandate cases that a court would conclude > the law burdens a religious practice if those who wish to engage in the > practice sincerely believe that it is a religious observance or practice. > Save for prisoner RLUIPA cases, both opposing parties and courts seem quite > unwilling to question the characterization by a religious observer that a > practice is religious in character, and that appears to be equally the case > whether the claim arises under the religion clauses or RFRA. > > Mike > > Michael R. Masinter > Professor of Law > Nova Southeastern University > 3305 College Avenue > Fort Lauderdale, FL 33314 > 954.262.6151 > masin...@nova.edu > > > > From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> > on behalf of Paul Finkelman <paul.finkel...@yahoo.com> > Sent: Sunday, October 09, 2016 2:51:57 PM > To: Law & Religion issues for Law Academics > Subject: Re: "California Court Issues TRO Against Kaporos Practices" > > I would be interested in knowing if this practice is actually a "religious" > practice as opposed to a cultural practice brought over from Europe at some > point. That is, is there a basis for this practice in Torah, Talmud, or > Jewish "oral tradition," of if this is merely custom. Perhaps someone on the > list who knows more on this can comment. > > I guess my question is, and I hope Eugene has some thoughts on it is this: > just because it is done around a holiday and in a synagogue and with a rabbi, > does that actually make it a religious practice? Or a cultural one? > I do not know the answer. > > Then of course, if this is not actually a religious practice, can the Courts > be asked to determine that? > > > ****************** > Paul Finkelman > Ariel F. Sallows Visiting Professor of Human Rights Law > College of Law > University of Saskatchewan > 15 Campus Drive > Saskatoon, SK S7N 5A6 > CANADA > paul.finkel...@yahoo.com > c) 518.605.0296 (US number) > > > From: "Volokh, Eugene" <vol...@law.ucla.edu> > To: "Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)" > <religionlaw@lists.ucla.edu> > Sent: Sunday, October 9, 2016 12:43 PM > Subject: "California Court Issues TRO Against Kaporos Practices" > > From > http://religionclause.blogspot.com/2016/10/california-court-issues-tro-against.html: > As previously reported, in late September an animal rights group filed suit > against Chabad of Irvine in a California federal district court challenging > Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves > use of live chickens which are then slaughtered. (Complaint in United Poultry > Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint > contended that defendants are in violation of California's unfair business > practices law. On Oct. 6, the court on its own motion ordered plaintiff to > show cause why the case should not be dismissed for lack of standing. (Full > text of court order.) On Oct. 7, plaintiff filed a response (full text) > arguing in part: > UPC has standing under the Unfair Competition Law based on its > diversion of organizational resources spent addressing Defendants’ unlawful > activity and attempting to convince authorities to take action. > The court was apparently convinced. It issued another order (full text > [https://www.scribd.com/document/326967590/Upc-v-Chabad-Tro]) on Oct 7 > granting plaintiff a temporary restraining order barring defendants from > killing chickens or other animals in exchange for a fee or donation in > violation of California Penal Code Sec. 597(a). It set a hearing on whether > to order a preliminary injunction for October 13, the day after Yom Kippur-- > effectively barring the pre-Yom Kippur practice by defendants for this year. > Any thoughts on how to analyze this? Note that sec. 597(a) generally bans > killing animals, but excludes killings allowed under sec. 599c: > > No part of this title shall be construed as interfering with any of the laws > of this state known as the "game laws," or any laws for or against the > destruction of certain birds, nor must this title be construed as interfering > with the right to destroy any venomous reptile, or any animal known as > dangerous to life, limb, or property, or to interfere with the right to kill > all animals used for food, or with properly conducted scientific experiments > or investigations performed under the authority of the faculty of a regularly > incorporated medical college or university of this state. > > I take it that, if the kaporos chicken were eaten after being slaughtered, > the action would not be illegal, and the injunction would not cover the sale > of the chicken. But according to the plaintiff’s papers, it appears that the > chickens are not being eaten -- partly because plaintiffs had earlier argued > that the carcasses were “unsanitary” -- but are instead being “rendered into > fertilizer.” > > I’m inclined to think that these exceptions don’t stop the law from being a > law of general applicability for Employment Division v. Smith purposes, > because they aren’t focused on singling out religious practice for special > burdens. (They do favor some secular practices over religious practices, but > I think that’s OK, as it is for a vast range of other laws that have many > secular exceptions, such as Title VII, copyright law, the duty to testify, > and many more.) But I’d love to hear what others think. > > Note also that California courts have not yet decided whether the California > Constitution’s religious freedom provision should be interpreted using the > Sherbert/Yoder model -- though, given the current liberal retreat from the > old Justice Brennan/ACLU position, I suspect that California courts will > follow Justice Scalia rather than Justice Brennan on this. > > Eugene > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others. > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
