As someone whose recent work has centered largely on the inability to neatly separate Jewish law from culture, I would conclude that for those who observe this practice, it should be viewed as a religious practice. Not all customs have the force of Jewish law--this is a very complex area. But there are many observances that--although they start as custom--end up being embraced as law by the rabbis. Custom is particularly interesting to me because it is the prime example of how Jewish law can develop from the bottom up (rather than top-down as a result of rabbinic ruling).
Three interesting examples that would be familiar to many on the list serve- the practice of saying Kaddish for a departed relative started as custom (as is also true for most other currently observed institutionalized memorial practices). This practice developed in medieval Germany as a response to historical realities. Also, despite the absence in the Talmudic tradition of a requirement that Jewish men wear a head covering (yarmulke or kippah), this practice now is regarded as obligatory in certain segments of the Jewish community. Third, the practices of separation of milk and meat utensils in our modern kosher kitchens developed as a result of stringencies practices by medieval and early modern Jewish communities. These laws are not Talmudic in origin (although the Talmud did prohibit eating milk and meat together). Re: the kapparot example, one other thing I should have noted in my post yesterday is that after the chicken is killed, it is traditionally given to a needy family (donations to charity is also a form of atonement). It is also my understanding that this practice is/was often performed in the home rather than in a synagogue (Ari Goldman wrote of his family observing it at home when he was growing up). Bobbi Roberta Rosenthal Kwall Raymond P. Niro Professor Founding Director, DePaul University College of Law Center for Intellectual Property Law & Information Technology Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition http://amzn.to/15f7bLH You can view my papers on the Social Science Research Network (SSRN) at the following URL: http://ssrn.com/author=345249 ________________________________ 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 1:51 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<mailto: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<mailto: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.
