Just to let you know that Religion Clause blog is back after a hiatus.
Howard Friedman
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I believe there is a greater amount of legal ambiguity than the media is
suggesting in the wake of today's Joint Letter withdrawing Obama
Administration's Guidance on transgender rights under Title IX. See
http://religionclause.blogspot.com/2017/02/trump-administration-withdraws-obama.html
I have just posted a summary of SCOTUS nominee Neil Gorsuch's opinions in
church-state and religious liberty cases.
http://religionclause.blogspot.com/2017/01/judge-gorsuchs-record-on-religious.html
I would appreciate learning of other of his decisions in this area that I have
missed.
Howard
http://religionclause.blogspot.com/2016/12/supreme-court-grants-cert-in-3-erisa.html
At issue is billions of dollars of potential retirement plan underfunding for
religiously affiliated hospitals and similar organizations.
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http://religionclause.blogspot.com/2016/10/supreme-court-grants-review-in.html
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I agree that there have been few if any cases so far of firings for using
contraceptives. Ironically there have been firings for becoming pregnant out of
wedlock-- if you will, for NOT using contraceptives. However past experience
has shown that as these things become public issues, religious
The Armed Forces Court of Appeals handed down an interesting RFRA decision
yesterday-- with an extensive discussion of the "substantial burden" prong as
well as some other unique issues:
http://religionclause.blogspot.com/2016/08/armed-forces-court-of-appeals.html
Howard Friedman
For those following the Republican Convention closely, I have a series of posts
today on Religion Clause http://religionclause.blogspot.com/ setting out the
text of Platform planks on issues of religious liberty and moral values, as
well as a post listing all those offering invocations and
quot;I don’t believe that’s the way to carry out
Jesus’ primary directives to protect the least among us and to love thy
neighbor."
Sigh.
On Thu, Jul 14, 2016 at 10:44 AM, Friedman, Howard M.
<howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>> w
Issuing a strong statement, Mississippi's attorney general says he will not
appeal Judge Reeves' decision
http://religionclause.blogspot.com/2016/07/mississippi-ag-will-not-appeal.html
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
Judge Reeves presented a robust defense of the Establishment Clause yesterday
in striking down Mississippi's attempt to allow religion- and conscience-based
discrimination against the LGBT community. More on Religion Clause
Interestingly, just yesterday the European Court of Human Rights in a Chamber
Judgement held that Article 9 (Freedom of thought, conscience and religion) of
the European Convention on Human Rights does not protect a Turkish
conscientious objector who would not agree to military service for the
The 4th Circuit today deferred to DOE's interpretation of its own rules and
held that Title IX requires schools to allow rest room use on basis of gender
identity. More at Religion Clause:
http://religionclause.blogspot.com/2016/04/4th-circuit-title-ix-requires-school.html
Howard Friedman
Civil marraige?
http://www.theguardian.com/world/2016/apr/18/worlds-first-pastafarian-wedding-takes-place-in-new-zealand
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Steven Jamar [stevenja...@gmail.com]
Sent: Monday,
Some of Donald Trump's anti-Muslim statements and some of his statements about
women have triggered responses from a variety of individuals and groups. It
appears to me that at least some of the groups expressing concern through press
releases and blog postings about Trump's language are
Chief Judge Merrick Garland hasn't had much to say about religion clause
issues, but I have tracked what is there at
http://religionclause.blogspot.com/2016/03/obamas-nominee-to-supreme-court-has.html
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News reports say that Pope Francis at a new conference in Mexico said that
contraceptives may be used in the case of mothers who may be trying not to get
pregnant because of the Zika virus. He is quoted as saying that "avoiding
pregnancy is not an absolute evil." Should this affect the
Note that the federal government is already making grants to houses of worship
under the Department of Homeland Security's Nonprofit Security Grants program
to strengthen security safeguards at nonprofit institutions that are
particularly likely to be the targets of terror attacks. Apparently
SCOTUS today granted cert in Trinity Lutheran Church v. Pauley. Details at
http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html
Howard Friedman
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Here is some evidence. If you search WorldCat for Harvard Law Review, it
indicates that it is held by 1611 different libraries. Somebody besides law
schools must think at least some legal research is important.
From: religionlaw-boun...@lists.ucla.edu
Interestingly, one of the couples acting as plaintiffs are not a same-sex
couple, but instead a heterosexual, blind, interracial couple who sued
successfully in 1976 after two North Carolina magistrates refused on religious
ground to perform their marriage.
Howard Friedman
There is also an excellent tracker for enacted and pending state RFRA's at Don
Byrd's Blog from the Capital: http://bjconline.org/state-RFRA-tracker-2015/ It
is kept updated. It does not however cover the state constitutional part.
Howard Friedman
From:
The Supreme Court today granted review in 7 cases challenging the Affordable
Care Act contraceptive mandate accommodation for religious non-profits. More at
http://religionclause.blogspot.com/2015/11/supreme-court-grants-review-in-7-cases.html
Howard Friedman
ed
cases<http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html>
Posted 4:18 PM by Marty Lederman [link]
<http://balkin.blogspot.com/2015/11/court-grants-all-seven-nonprofit.html>
On Fri, Nov 6, 2015 at 2:38 PM, Friedman, Howard M.
<howard.fried...@uto
The 3rd Circuit yesterday issued rather remarkable majority and concurring
opinions in Hassan v. City of New York refusing to dismiss Muslims' attack on
NYPD's surveillance program.
http://religionclause.blogspot.com/2015/10/3rd-circuit-challenge-to-nypd-muslim.html
In discussing the changes that Ms. Davis might have made in the license form to
accommodate her religious beliefs, I don't believe anyone on this list has
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:
"The form of marriage license prescribed in KRS 402.100 shall be uniform
ligionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 3:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene
In discussing the changes that Ms. Davis might have made in the license fo
Here is my post on the facts to this hour as I have been able to glean them:
http://religionclause.blogspot.com/2015/09/recalcitrant-kentucky-county-clerk.html
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Finkelman,
Kentucky law requires the license to be signed by the clerk or deputy clerk.
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475
I have a different question though. State RFRAs protect against actions by the
government that infringe religious liberty. Here Kim Davis "is" the
government, i.e.
A famous example of this many years ago involved the issue of whether Dow
Chemical should stop selling napalm to the U.S. government for use in the Viet
Nam War because of the terrible injuries it caused. Some shareholders
attempted to stop the company from continuing to manufacture the
Marty-- Have you seen yesterday's 8th Circuit opinion that could open a whole
new line of challenges?
http://religionclause.blogspot.com/2015/07/8th-circuit-parents-have-standing-to.html
From: religionlaw-boun...@lists.ucla.edu
As I read the opinion, the damage award for discrimination was not particularly
based on the interview. Then there was a second piece: The Commissioner, going
beyond the ALJ's conclusions, found a violation of ORS 659A.409 that prohibits
anyone acting on behalf of a place of public
Supreme Court Rules Against Abercrombie In Title VII Religious Accommodation
Case. See
http://religionclause.blogspot.com/2015/06/supreme-court-rules-against-abercrombie.html
Howard Friedman
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Almost everyone agrees that if the Supreme Court concludes that states must
recognize same-sex marriages, still no state may force a member of the clergy
to perform a same-sex wedding if that is inconsistent with his/her religious
beliefs. But what about the converse? States delegate to clergy
The Arkansas legislature today passed a state RFRA. While national media is
reporting that the bill is similar to Indiana's, in fact it is broader in
several ways. See
http://religionclause.blogspot.com/2015/03/arkansas-legislature-passes-rfra-law.html
For anyone interested, I have put up a lengthy post at Religion Clause setting
out my take on the Indiana RFRA,
http://religionclause.blogspot.com/2015/03/why-is-indianas-rfra-so-controversial.htmlhttp://religionclause.blogspot.com/2015/03/why-is-indianas-rfra-so-controversial.html
Howard
Some of us suggested earlier this year that the rules the Supreme Court set
down in Holt v. Hobbs would be a lot more difficut to apply in less clear
cases. An example of that has now appeared in Stover v. Corrections Corp of
America-- a transgender Native American inmate wants access to the
For anyone who might be interested, I have just posted some initial thoughts on
today's Holt opinion on Religion Clause
http://religionclause.blogspot.com/2015/01/some-thoughts-on-todays-supreme-court.html
Your reactions are welcomed.
Howard Friedman
From:
Details at
http://religionclause.blogspot.com/2015/01/supreme-court-grants-review-in-6th.html
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The 6th Circuit today departed from 4 other Circuits and (2-1) upheld same-sex
marriage bans in 4 states. More at
http://religionclause.blogspot.com/2014/11/6th-circuit-upholds-same-sex-marriage.html
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I think this case on its facts is likely to be easy for the Court because so
many other states have found ways to accommodate beards. That being the case,
I fear that the Court may not be as careful as it should in formulating the
strict scrutiny test under RLUIPA. Broadly speaking, prisons
The Supreme Court today granted cert in the religious accommodation case
involving Abercrombie's look policy. More at
http://religionclause.blogspot.com/2014/10/supreme-court-grants-review-in.html
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Yesterday the 6th Circuit reversed convictions in the Amish beard cutting
attack cases, in an important decision on required motivation under the Hate
Crimes Prevention Act
http://religionclause.blogspot.com/2014/08/6th-circuit-reverses-hate-crime.html
President Obama today announced his intent to nominate Rabbi David Saperstein
as Ambassador at Large for International Religious Freedom. Those of you who
know Rabbi Saperstein will agree, I believe, that he is immensely qualified.
See more at
It seems to me that Justice Alito rather nicely avoided having to deal with the
question of how much a corporation is like a real person (including whether it
has a soul, etc.), and also avoided dealing with the well-developed piercing
the corporate veil doctrine by adopting a view of
Thanks for the heads up. Scalia's dissent is fascinating. I just blogged on
it:
http://religionclause.blogspot.com/2014/06/scotus-review-denied-over-interesting.html
Howard Friedman
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
Does anyone know whether the trustees of Notre Dame perhaps interpreted Pope
Benedict's remarks in his meeting with them in Rome on Jan. 31 as being a
reference to Notre Dame's position on the contraceptive mandate. The Pope said:
This commitment to “missionary discipleship” ought to be
Whoops-- of course I meant Pope Francis. Sorry for the Freudian(?) slip.
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Friedman, Howard M. [howard.fried...@utoledo.edu]
Sent: Sunday, February 16, 2014 7:20 PM
To: Law
To get this right, you have to look at some technicalities that generally cause
even lawyers' eyes to glaze over. When a religious non-profit offers its
employees a group health insurance plan through an insurance company, the
self-certification form does in essence say: let us know and we'll
The Supreme Court today extended the injunction pending appeal in Little
Sisters of the Poor case, but with unusual conditions-- see
http://religionclause.blogspot.com/2014/01/supreme-court-enjoins-enforcement-of.html
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There is another aspect to this which it seems to me has gone largely
unnoticed. The 2 cases that the Supreme Court has agreed to review are from
individuals and businesses who do not object to contraception, but instead
object to abortion and believe that some contraceptives are
The Supreme Court today granted certiorari in Hobby Lobby and Conestoga--- more
at
http://religionclause.blogspot.com/2013/11/supreme-court-grants-review-in-two.html
Howard Friedman
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Yesterday, the U.S. Supreme Court in an unusual move issued an injunction
pending review of a Muslim prisoner's cert petition to prevent the Arkansas
Department of Corrections from enforcing its grooming policy. The policy
prevented petitioner from wearing his religiously mandated beard. More
(212) 867-1067
-Original Message-
From: Friedman, Howard M.
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu
To: Law Religion issues for Law Academics
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Thu, Aug 15, 2013 10:48 pm
Subject: RE: New Twist
In an interesting new lawsuit, a Missouri legislator (suing as an employee of
the state) seeks on religious liberty grounds the ability to obtain a health
insurance policy from his employer that does not cover contraception,
sterilization or abortifacients. He particularly objects to coverage
@lists.ucla.edu
Sent: Thursday, August 15, 2013 11:06:49 AM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate
Next up, a lawsuit demanding to be paid in currency that can't be used to buy
contraception.
Eduardo
From: Friedman, Howard M.
howard.fried...@utoledo.edumailto:howard.fried
I think that there are at least two things going on here that have not been
well articulated:
(1) Corporate lawyers have spent decades attempting to convince courts and
legislatures that the corporate entity should be seen as a separate person
from its shareholders, even when the corporation
An Ohio federal district court yesterday granted a temporary restraining order
requiring the state to recognize the validity of a same-sex marriage performed
in Maryland. More on the 15-page opinion at Religion clause blog
A petition for a writ of mandate was filed Friday with the California Supreme
Court arguing that because of the narrowness of the injunction that was
reinstated by the US Supreme Court, California county clerks must still enforce
Prop. 8 that bans same-sex marriage. More details on Religion
The ripeness issue has become more complicated in light of the Justice
Department's July 3 filing in the Liberty University case-- see
http://religionclause.blogspot.com/2013/07/justice-department-invokes-employer.html
Howard Friedman
From:
The 10th Circuit en banc yesterday gave a surprisingly strong endorsement to
free exercise rights of for-profit corporations in Hobby Lobby case. More here
http://religionclause.blogspot.com/2013/06/10th-circuit-en-banc-gives-big-win-to.html
Howard Friedman
While I know there is, and will be, no lack of ink spilled (or the online
equivalent) on today's same-sex marriage decisions by the Supreme Court, I just
wanted to let anyone interested know that I will have a series of posts over
the next couple of days on Religion Clause analyzing the
New Hampshire court finds tax credit equals tax expenditure under state
constitution's No Aid clause. More on Religion Clause:
http://religionclause.blogspot.com/2013/06/in-important-decision-new-hampshire.html
Howard Friedman
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Nate--
Very interesting piece. I believe the vote, not a veto language originated
in the writings of Rabbi Mordecai Kaplan who, departing from the Orthodox
Jewish view that halacha [traditional Jewish law] was the sole standard for
Jewish practice, said the past has a vote, not a veto. The
The Supreme Court this morning granted certiorari in Town of Greece v.
Galloway. Details at Religion Clause blog.
http://religionclause.blogspot.com/2013/05/supreme-court-grants-certiorari-in-city.html
Howard Friedman
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In a 2-1 decision today, the 2nd Circuit found DOMA unconstitutional, applying
intermediate-level scrutiny to discrimination against gays and lesbians. More
at Religion Clause blog
http://religionclause.blogspot.com/2012/10/2nd-circuit-in-2-1-decision-finds-doma.html
Howard Friedman
In an important and carefully reasoned opinion yesterday, a
Republican-appointed federal district judge rejected on the merits a series of
RFRA and First Amendment challenges to the contraceptive coverage mandate under
the Affordable Care Act. More at Religion Clause
This may be relevant to your concerns-- Both Delaware Gen. Corp. L. Sec. 122
and Model Business Corporation Act Sec. 3.02 that set out the general powers
of corporations provide that they may make donations for the public welfare or
for charitable, scientific or educational purposes, while
In an interesting decision, a federal district judge today relied on RFRA to
enjoin enforcement of the ACA mandate against a small manufacturing company
whose officers and directors are Catholic. Details at
http://religionclause.blogspot.com/2012/07/court-issues-preliminary-injunction-in.html
I think the problem is that currently the UK Equality Act creates a conscience
exemption only where necessary to comply with the doctrine of a religious
organization or to avoid conflict with the strongly held religious convictions
of a significant number of the followers of the religion or
It seems to me that your paragraph (2) focuses the issue. Should the Free
Exercise clause understand religion only as a belief system? Traditional
Judaism does not define it that way. Instead (for those who are born of a
Jewish mother) it is an identity that precedes a belief system. Can the
I think some guidance on relative rights of parents and children to make a
decision that could arguably either harm the child or be in the child's best
interest are found in the Supreme Court's 1979 decision in Parham v. J.R. on
parental commitment of a minor to a state mental hospital. While
What has been absent from all of the discussion on this issue is the importance
to Jewish belief of circumcision while the son is an infant. This ceremony at
8-days of age (except where health precludes it that early) is the son's
initiation into Jewish peoplehood. Waiting until adulthood is
to whom they are genetically linked?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Thursday, July 05, 2012 8:52 AM
To: Law Religion issues for Law Academics
Subject: RE: Parental rights
The basic issue, it seems to me, is the right of parents to instill a
particular religious faith in their children. Requiring parents to raise their
children with no religious faith so the children can decide on their religion
when they become adults is not a satisfactory alternative to anyone
The website of the coalition opposing the measure http://ndagainst3.com/
suggests some reasons for the loss in North Dakota. The major newspapers in
the state opposed it, as did the bishop of the Western North Dakota Synod of
the Evangelical Lutheran Church of America. (North Dakota has a
It is interesting to compare reactions in Europe to similar situations. In
2010, French politicians strongly criticized a restaurant chain that decided to
serve only halal meat in 8 of its restaurants with a large Muslim clientele.
Agriculture Minister Bruno Le Maire said: When they remove all
process.
On Wed, Apr 11, 2012 at 11:08 PM, Friedman, Howard M.
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote:
It is interesting to compare reactions in Europe to similar situations. In
2010, French politicians strongly criticized a restaurant chain that decided to
serve
Something peculiar seems to be going on with the annual report of the US
Commission on International Religious Freedom. It was released this morning,
but late this afternoon 5 of the Commissioners circulated a statement saying
that Turkey should not have been on the recommended list to be named
For those interested in religious accommodation in athletics and did not see
this last year, the University of Toledo created a fascinating accommodation
for their Orthodox Jewish star women's basketball player-- described here
http://www.forward.com/articles/136770/ . The accommodation was
Many exemptions can be described also as affirmative accommodations. The
person bringing his or her own meal into a restaurant is taking up table space
that might otherwise be used by a patron ordering from the menu. Allowing it
however may just be good business practice, since otherwise the
Is there another way around this? As I understand it, under the Affordable Care
Act by 2014 every state must have a health benefits exchange on which
individuals without coverage from their employers can purchase their own
policies. Can't institutions with objections to federal regulations on
The US Conference of Catholic Bishops in responding to the modified policy
seems to believe that protections should go beyond religious entities and
should cover secular employers and individuals with moral objections as well.
They said ( http://usccb.org/news/2012/12-026.cfm ):
**the lack of
In an interesting opinion issued last week, the South Dakota Supreme Court may
be the first court to cite Hosanna-Tabor as the basis for a decision-- and
outside the employment area. The court refused to order dissolution of a
Hutterite church created as a non-profit corporation because it
I think that the decision has much broader implications for church autonomy. I
have just developed this argument in some detail in a posting on Religion
Clause, for those who may be interested in reading it.
http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html
I
http://religionclause.blogspot.com/2012/01/supreme-court-upholds-ministerial.html
Howard Friedman
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It seems to me the SG is arguing that there is no ministerial exception from
the anti-retaliation provisions of the ADA, but is not necessarily arguing the
same as to the anti-discrimination provisions. This makes some sense, since--
to the extent that the ministerial exception doctrine is
Chris--
There are a number of statements in the SG's brief that suggest the government
is limiting its argument to the anti-retaliation provisions, without taking a
position beyond that. E.g. the policy arguments in part III of the brief all
focus on policies relating to retaliation claims.
A suit filed today seeks to void New York's same-sex marriage law and void
marriages under it performed so far. It relies on alleged procedural defects in
the adoption of the law. More information and link to complaint at
The new New York same-sex marriage bill has several different-- and apparently
hastily drafted--exemptions. One merely preserves the existing exemption in NY
Executive Law Sec. 296. Sec 296 provides:
Nothing contained in this section shall be construed to bar any
religious or
The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC.
More at
http://religionclause.blogspot.com/2011/03/supreme-court-grants-review-in.html
Howard Friedman
Professor of Law Emeritus
University of Toledo
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The Grand Chamber of the European Court of Human Rights today held that Italy's
required placement of crucifixes in state school classrooms does not violate
protections of the European Convention on Human Rights. More at Religion
Clause blog:
To be appointed a chaplain, a person needs an ecclesiastical endorsement from a
recognized endorsing agency connected with the person's faith group. See
http://www.goarmy.com/chaplain/about/requirements.html
Howard Friedman
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
I think the 1983 New York Court of Appeals decision in Avitzur v. Avitzur, 446
NE2d 136 is relevant to this discussion. There a court enforced the so-called
Lieberman clause in a Jewish marriage contract (Ketubah) which bound the
parties to appear before a Jewish religious court so the wife
-3386 (o)
518-445-3363 (f)
www.paulfinkelman.com
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Monday, January 03, 2011 9:23 PM
To: Law Religion issues for Law Academics
Subject: RE: May American court appoint only Muslim
Pardon the self-promotion. Public Square has posted a 4-part debate between
Marci Hamilton and me on the Religious Freedom Restoration Act at
http://publicsquare.net/religious-freedom-restoration-act-bad-law-or-bad-lawyering
The essays were actually written a number of months ago-- there was a
The Supreme Court this morning in an extremely fragmented decision reversed the
9th Circuit's order that had barred the federal government from transfering the
Sunrise Rock Cross war memorial to the VFW. Details are on Religion Clause:
I posted a follow-up this afternoon on Religion Clause setting out some initial
reactions I had to the JFS opinion. I think it is a more important opinion,
with implications beyond Britain, than initial coverage has suggested. Here is
the link to the commentary:
The Supreme Court this morning granted cert in a CLS case in which the 9th
Circuit upheld application of university nondiscrimination provisions to a law
school religious group.
http://religionclause.blogspot.com/2009/12/supreme-court-grants-review-in-hastings.html
Howard Friedman
The problem in this case is not ethnicity in the way we usually use that
term. If the mother had converted to Judaism under an Orthodox rabbi, the
school would have admitted the student. The problem was that in this case she
had converted under a rabbi in Britain's equivalent of the Reform
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