Re: "California Court Issues TRO Against Kaporos Practices"

[Michael Masinter]

Josh,


Excellent work within extremely short time constraints.


Mike


From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Tuesday, October 11, 2016 8:30:01 AM
To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: Re: "California Court Issues TRO Against Kaporos Practices"


   Those interested in the California Kaporos case might want to 
check out Prof. Josh Blackman’s amicus brief, 
https://www.scribd.com/document/327148724/Brief-Amicus-Curiae-of-Professor-Joshua-Blackman-in-United-Poultry-Concerns-v-Chabad-of-Irvine,
 which argues that there’s no federal jurisdiction; here's the key passage:



   First, plaintiffs wildly speculate that over the next decade, if 
three-hundred chickens are killed annually at a cost of $25 each, the amount in 
controversy will conveniently exceed $75,000. Complaint at ¶ 7. This argument 
is laughable, and warrants sanctions under Rule 11. There is no principle of 
federal jurisprudence under which a plaintiff can arbitrarily aggregate 
speculative damages over the course of a decade to meet the minimum amount in 
controversy. Even worse, because the plaintiffs were seeking a temporary 
restraining order to prohibit the imminent Kapparot ritual in October 2016, it 
is absurd to look out a decade. And why only ten years? Why not twenty, thirty, 
or even a century? If this standard is applied, “any plaintiff filing suit 
would be allowed to show injury.” Hernandez v. Specialized Loan Servicing, LLC, 
No. 14-CV-9404-GW, 2015 U.S. Dist. LEXIS 8695, at *24-*25, (C.D. Cal. Jan. 22, 
2015)(quoting Koller v. W. Bay Acquisitions, LLC, No. 11-CV-117-CRB, 2012 U.S. 
Dist. LEXIS 49712, at *20-*21 (N.D. Cal. Apr. 9, 2012) (quoting Selby v. Bank 
of Am., Inc., No. 09-CV-2079-BTM, 2010 U.S. Dist. LEXIS 139966, at *24 (S.D. 
Cal. Oct. 27, 2010). There is no diversity jurisdiction.

   Second, if plaintiffs speculate that if victorious, their 
attorney’s fees may total more than $75,000. Complaint at ¶ 8. This claim is 
specious, and flatly contrary to law. As the Court noted in its order to show 
cause, “attorney’s fees do not satisfy the UCL standing requirement.” Nor do 
they satisfy the matter in controversy requirement per 28 U.S.C. § 1332(a), 
which requires the matter to exceed $75,000 “exclusive of interest and costs.” 
If fees could be aggregated in a fantasy-victory, plaintiffs could always 
artificially manufacture diversity jurisdiction.

   Third, plaintiffs write that a “A California court would have 
subject matter jurisdiction over the claims.” Complaint at ¶ 9. This is legally 
irrelevant. California courts are courts of general jurisdiction. Federal 
courts are courts of limited subject matter jurisdiction empowered to exercise 
the judicial power of the United States only when authorized to do so by 
Congress. (For a preview of future briefs-to-come if this case is not 
dismissed, citations to state-court decisions are not sufficient to demonstrate 
an Article III injury).

   Fourth, plaintiffs write that “this case requires resolution of 
a substantial question of federal law” because the defendants will “contend 
their actions are protected by the Free Exercise clause of the First 
Amendment.” Complaint at ¶ 10. This is an elemental error of federal pleading. 
Under the Mottley rule, a well-pleaded complaint must raise the federal 
questions on the face of the complaint–it is not enough to speculate about what 
federal questions the defendant may raise in response. Louisville & Nashville 
Railroad Company v. Mottley, 211 U.S. 149 (1908). Nothing in Grable & Sons 
Metal Products, Inc. v. Darue Engineering & Mfg., (2005) 545 U.S. 308, which 
defendants inexplicable cite, is to the contrary. Indeed, Grable does not even 
reference the canonical Mottley rule, which has stood for nearly a century 
without challenge.

   Finally, the Court’s order to show cause seems to conflate 
subject matter jurisdiction and injury for purpose of Article III. Regardless 
of whether the plaintiffs have suffered an injury – again, a dubious 
proposition under Article III even if is permissible in state courts – the 
threshold inquiry is whether there is federal diversity or federal question 
subject matter jurisdiction. Under no set of circumstances have plaintiffs 
established that this court has jurisdiction to proceed.



   Eugene






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Re: "California Court Issues TRO Against Kaporos Practices"

[Volokh, Eugene]

   Those interested in the California Kaporos case might want to 
check out Prof. Josh Blackman’s amicus brief, 
https://www.scribd.com/document/327148724/Brief-Amicus-Curiae-of-Professor-Joshua-Blackman-in-United-Poultry-Concerns-v-Chabad-of-Irvine,
 which argues that there’s no federal jurisdiction; here's the key passage:



   First, plaintiffs wildly speculate that over the next decade, if 
three-hundred chickens are killed annually at a cost of $25 each, the amount in 
controversy will conveniently exceed $75,000. Complaint at ¶ 7. This argument 
is laughable, and warrants sanctions under Rule 11. There is no principle of 
federal jurisprudence under which a plaintiff can arbitrarily aggregate 
speculative damages over the course of a decade to meet the minimum amount in 
controversy. Even worse, because the plaintiffs were seeking a temporary 
restraining order to prohibit the imminent Kapparot ritual in October 2016, it 
is absurd to look out a decade. And why only ten years? Why not twenty, thirty, 
or even a century? If this standard is applied, “any plaintiff filing suit 
would be allowed to show injury.” Hernandez v. Specialized Loan Servicing, LLC, 
No. 14-CV-9404-GW, 2015 U.S. Dist. LEXIS 8695, at *24-*25, (C.D. Cal. Jan. 22, 
2015)(quoting Koller v. W. Bay Acquisitions, LLC, No. 11-CV-117-CRB, 2012 U.S. 
Dist. LEXIS 49712, at *20-*21 (N.D. Cal. Apr. 9, 2012) (quoting Selby v. Bank 
of Am., Inc., No. 09-CV-2079-BTM, 2010 U.S. Dist. LEXIS 139966, at *24 (S.D. 
Cal. Oct. 27, 2010). There is no diversity jurisdiction.

   Second, if plaintiffs speculate that if victorious, their 
attorney’s fees may total more than $75,000. Complaint at ¶ 8. This claim is 
specious, and flatly contrary to law. As the Court noted in its order to show 
cause, “attorney’s fees do not satisfy the UCL standing requirement.” Nor do 
they satisfy the matter in controversy requirement per 28 U.S.C. § 1332(a), 
which requires the matter to exceed $75,000 “exclusive of interest and costs.” 
If fees could be aggregated in a fantasy-victory, plaintiffs could always 
artificially manufacture diversity jurisdiction.

   Third, plaintiffs write that a “A California court would have 
subject matter jurisdiction over the claims.” Complaint at ¶ 9. This is legally 
irrelevant. California courts are courts of general jurisdiction. Federal 
courts are courts of limited subject matter jurisdiction empowered to exercise 
the judicial power of the United States only when authorized to do so by 
Congress. (For a preview of future briefs-to-come if this case is not 
dismissed, citations to state-court decisions are not sufficient to demonstrate 
an Article III injury).

   Fourth, plaintiffs write that “this case requires resolution of 
a substantial question of federal law” because the defendants will “contend 
their actions are protected by the Free Exercise clause of the First 
Amendment.” Complaint at ¶ 10. This is an elemental error of federal pleading. 
Under the Mottley rule, a well-pleaded complaint must raise the federal 
questions on the face of the complaint–it is not enough to speculate about what 
federal questions the defendant may raise in response. Louisville & Nashville 
Railroad Company v. Mottley, 211 U.S. 149 (1908). Nothing in Grable & Sons 
Metal Products, Inc. v. Darue Engineering & Mfg., (2005) 545 U.S. 308, which 
defendants inexplicable cite, is to the contrary. Indeed, Grable does not even 
reference the canonical Mottley rule, which has stood for nearly a century 
without challenge.

   Finally, the Court’s order to show cause seems to conflate 
subject matter jurisdiction and injury for purpose of Article III. Regardless 
of whether the plaintiffs have suffered an injury – again, a dubious 
proposition under Article III even if is permissible in state courts – the 
threshold inquiry is whether there is federal diversity or federal question 
subject matter jurisdiction. Under no set of circumstances have plaintiffs 
established that this court has jurisdiction to proceed.



   Eugene






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RE: "California Court Issues TRO Against Kaporos Practices"

[Michael Masinter]

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 

RE: "California Court Issues TRO Against Kaporos Practices"

[Kwall, Roberta]

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 o

RE: "California Court Issues TRO Against Kaporos Practices"

[Volokh, Eugene]

   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] On Behalf Of Michael Masinter
Sent: Sunday, October 9, 2016 8:18 PM
To: Law & Religion issues for Law Academics <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.ucl

Re: "California Court Issues TRO Against Kaporos Practices"

[Michael Masinter]

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

Sent from my iPhone

On Oct 9, 2016, at 2:44 PM, Volokh, Eugene 
> 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
To subscribe, unsubscribe, change options, or get password, see 
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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.
___
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To subscribe, unsubscribe, change options, or get password, see 
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Anyone can subscribe to the list and read messages that are posted; 

RE: "California Court Issues TRO Against Kaporos Practices"

[Kwall, Roberta]

I should have made explicit that Goldman didn't kill the chicken!



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: Kwall, Roberta
Sent: Sunday, October 09, 2016 3:32 PM
To: Law & Religion issues for Law Academics; Paul Finkelman
Subject: RE: "California Court Issues TRO Against Kaporos Practices"

I would like to furnish a bit of background for the practice of Kapparot for 
the benefit of the list- I realize it may seem like one of the strangest 
practices and I suspect it is largely unfamiliar to most (even many Jews 
today).  Essentially, the practice, which involves swinging a live chicken 
clockwise over one's head, is symbolic atonement (hence the connection with Yom 
Kippur).  It is practiced widely in some (not necessarily all) Hassidic 
communities.

Journalist Ari Goldman, a former reporter for the New York Times, writes about 
his experience with this ritual growing up, and how, as an adult, he actually 
longed to re-enact it.  He had to be careful what he wished for. Apparently a 
live chicken was waiting for him one year at his office at the NYT.  Indeed, he 
brought it home and his family enacted the ritual.  And then his daughter 
persuaded him to donate the chicken to a local day care center that  had a 
coop!  Goldman self identifies as a "pluralist" Orthodox Jew.

Warmly,
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 Michael Masinter [masin...@nova.edu]
Sent: Sunday, October 09, 2016 3:23 PM
To: Law & Religion issues for Law Academics; Paul Finkelman
Subject: Re: "California Court Issues TRO Against Kaporos Practices"


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<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"

>Fro

Re: "California Court Issues TRO Against Kaporos Practices"

[Rabbi Michael Simon]

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 t

RE: "California Court Issues TRO Against Kaporos Practices"

[Kwall, Roberta]

I would like to furnish a bit of background for the practice of Kapparot for 
the benefit of the list- I realize it may seem like one of the strangest 
practices and I suspect it is largely unfamiliar to most (even many Jews 
today).  Essentially, the practice, which involves swinging a live chicken 
clockwise over one's head, is symbolic atonement (hence the connection with Yom 
Kippur).  It is practiced widely in some (not necessarily all) Hassidic 
communities.

Journalist Ari Goldman, a former reporter for the New York Times, writes about 
his experience with this ritual growing up, and how, as an adult, he actually 
longed to re-enact it.  He had to be careful what he wished for. Apparently a 
live chicken was waiting for him one year at his office at the NYT.  Indeed, he 
brought it home and his family enacted the ritual.  And then his daughter 
persuaded him to donate the chicken to a local day care center that  had a 
coop!  Goldman self identifies as a "pluralist" Orthodox Jew.

Warmly,
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 Michael Masinter [masin...@nova.edu]
Sent: Sunday, October 09, 2016 3:23 PM
To: Law & Religion issues for Law Academics; Paul Finkelman
Subject: Re: "California Court Issues TRO Against Kaporos Practices"


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<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 o

Re: "California Court Issues TRO Against Kaporos Practices"

[Michael Masinter]

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<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 pla

"California Court Issues TRO Against Kaporos Practices"

[Volokh, Eugene]

>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
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