Thanks; I recognize the underlying question left open from Smith of whether the existence of any exemptions (scientific research) but no religious exemption triggers strict scrutiny.
Mike From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, October 10, 2016 1:41 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: RE: "California Court Issues TRO Against Kaporos Practices" I think that's right -- but I'm curious about whether there would indeed be viable objections to a criminal prosecution, whether for violation of the injunction or for violation of the underlying statute. (I assume that prosecution for violation of an injunction is more likely than prosecution for violation of the statute, but I agree that the legal arguments would be pretty similar.) Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Sunday, October 9, 2016 8:18 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: "California Court Issues TRO Against Kaporos Practices" Eugene, I recall that CA does not follow the collateral bar rule. If that's true, then can't the Chabad pursue a two track strategy--try to have the injunction vacated tomorrow, and failing that, just ignore it and defend any ensuing criminal contempt (or implausible remedial civil contempt proceeding) by contesting the validity of the injunction? Mike Masinter masin...@nova.edu<mailto:masin...@nova.edu> Sent from my iPhone On Oct 9, 2016, at 2:44 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: >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.
