YU Pride Alliance v. Yeshiva University

A uniquely Jewish institution 

For more than 135 years, Yeshiva University has been a place where students can immerse themselves in Jewish culture to study the Torah, learn Hebrew, and receive an education steeped in the Modern Orthodox tradition. The school gets its name from the word “yeshiva,” referring to a Jewish religious school dedicated to study of the Talmud. True to its name, all undergraduate men spend two to six hours each day intensely studying Torah. Undergraduate women take at least two Jewish studies courses every semester. Shabbat (the Jewish sabbath) is observed campus wide, as are the laws of kashrut (kosher food).  

As at most yeshivas and Jewish seminaries, there are sex-segregated classes, dorms, and even campuses. Students are strongly encouraged to dress and conduct themselves consistent with Torah values. Yeshiva’s strong religious environment pervades its campuses, accommodating and supporting the school’s reason for existing and the faith of its students.  

Putting a judicial thumb on the scale 

Yeshiva lives out its religious commitment by striving to bring Torah values to the modern secular world. In this pursuit, Yeshiva has long sought both to uphold Torah moral teachings and to welcome and protect its LGBTQ students. It has strong anti-discrimination policies and has held many public events over the past decade to explore what it means to be LGBTQ and Jewish, and how the University can demonstrate greater respect and understanding for LGBTQ students.   

In 2020, a group of students asked Yeshiva to officially recognize a new student club called “YU Pride Alliance.” Following extensive discussion with the students, Yeshiva’s administrators and Roshei Yeshiva (“senior rabbis”) introduced several changes on campus to better support LGBTQ students. But Yeshiva concluded that a club called “Pride Alliance”—as described by the students and understand by the culture at large—would not be consistent with its Torah values. Nevertheless, Yeshiva remains committed to ongoing dialogue regarding forums or clubs that would be consistent with Torah values.   

Unhappy with Yeshiva’s religious decision, the students sued. They now demand that a court force Yeshiva to endorse the Pride Alliance, regardless of its 3,000-year-old religious values. 

Protected by law 

Both the U.S. Constitution—as recently affirmed by the Supreme Court in Our Lady of Guadalupeand New York City’s Human Rights Law protect Yeshiva University’s ability, as a private religious institution, to carry out its religious mission in keeping with its religious teachings. 

After the New York County Supreme Court denied Yeshiva University’s arguments and concluded that the school was not a “religious corporation” under city law and not protected by the U.S. Constitution, the Court entered a permanent injunction ordering Yeshiva to “immediately” violate its Torah values and approve the club. On behalf of Yeshiva University, Becket moved quickly to request relief from both the New York Appellate Division and the New York Court of Appeals (the state’s highest court), but both requests were rejected on August 25, 2022. Becket filed an emergency request to the United States Supreme Court on August 29, 2022, requesting that the Court intervene to stay the violation of Yeshiva’s First Amendment rights pending appeal.  

On September 9, Justice Sotomayor entered an emergency stay, protecting Yeshiva pending a full Court decision. In a 5-4 decision, the full Court lifted that stay, while also stating that “[i]f Yeshiva seek[s] and receive[s] neither expedited review nor interim relief from the New York courts, [it] may return to this Court.” At the same time, four justices dissented, saying that Yeshiva should have been granted immediate relief. And if Yeshiva comes back, they added, “Yeshiva would likely win.” Failure by the New York courts to grant relief, they said, would be “a shocking development that calls out for [SCOTUS] review.” The following Monday, the New York Appellate Division agreed to rehear its denial of Yeshiva’s stay request. After these two court rulings, Pride Alliance agreed to voluntarily stay the injunction against Yeshiva pending all appeals, including back up to the U.S. Supreme Court if necessary.  

With an agreed-to stay, the New York Appellate Division will review the merits of the ruling against Yeshiva. Briefing in the case will be completed by October 14 and oral argument will occur in November. A decision will follow.  

Di Liscia v. Austin

Beards: a naval tradition and a religious obligation 

For most of the nearly 250-year-old history of the U.S. Navy, sailors were known for their beards – indeed, the Secretary of the Navy during the Civil War, Gideon Welles, sported a full, bushy beard. In the 1970s, Admiral Elmo Zumwalt, then Chief of Naval Operations, forbade discrimination or any violation of the “rights and privileges” of sailors who chose to wear beards – which helped sailors suffering from “razor bumps” (Pseudofolliculitis barbae), a painful infection aggravated by shaving.  

This policy also accommodated the needs of religious minorities such as Muslims, Sikhs, and Orthodox Jews, who often wear beards in accordance with the traditions and obligations of their faith. But in 1985, the Navy did an about-face and broadly banned beardswhile granting limited exemptions for religious, morale, and medical purposes. In recent years, the Navy has begun to further narrow those exemptions, rejecting religious exemption requests and pressuring sailors to give up medical exemptions, instead of allowing them to keep their beards.  

An unnecessary conflict 

This has made America’s Navy a much less welcoming place for sailors like Edmund Di LisciaDi Liscia, devout Orthodox Jew, joined the U.S. Navy in 2018 and is currently at sea, serving on the USS Theodore RooseveltDi Liscia’s Jewish faith requires him to wear a beard as a sign of spiritual maturity, and an expression of obedience and fidelity to God. So in September 2020, he formally requested a religious exemption from the Navy’s shaving policy, but the Navy refused to accommodate his religious convictions. Fortunately, Di Liscia has been able to maintain his beard thanks to temporary no-shave “chita religious accommodation granted by a commanding officer that allowed him to keep his beard

The chits aren’t just granted for religious reasons. For example, while at sea, Di Liscia’s commanding officer granted a ship-wide no-shave chit to boost moraleHowever, temporary chits aren’t sufficient to protect the religious liberty of sailors like Di Liscia. Case in point, on April 14, 2021, the Navy decided—for no apparent reason—that Di Liscia’s chit was no longer valid, and he was told that he must shave his beard within 24 hours or face punishment. 

But the Navy’s unfair policy is an outlierThe Army and Air Force have both taken steps to allow religious minorities to serve with their beards intact. Other nations, like the United Kingdom and Israel, also allow their sailors to maintain beards, proving that religious minorities don’t have to be faced with the choice of serving their country or their Creator.  

Under federal law, the military is prohibited from suppressing an individual’s religious exercise without a compelling government interest. On April 15, 2021, Becket asked the District Court for the District of Columbia to stop the Navy from forcing Di Liscia to shaveand sued to protect three other Muslim sailors, Leo KatsareasDominque Braggs, and Mohammed Shoyebas well. They will show once and for all that the Navy only stands to gain by letting them exercise their religious faith.   

Just a few hours after Becket’s filing, the Court set an emergency hearing and issued an order temporarily protecting Di Liscia from being forced to shave. Soon after, the Navy confirmed that it would not force Di Liscia to shave in the short term, and Becket will continue pursuing a lasting accommodation so that Di Liscia, and other sailors like him, can freely live out their religious beliefs while serving their country. 

Importance to Religious Liberty:

  • Individual FreedomThe government cannot burden the sincere religious beliefs of individuals by preventing them from exercising their faith. Because all individuals have a right to sincerely follow their faiththe government cannot discriminate against them by impeding their religious conduct or forbidding their obligatory religious practices. Instead, the government should find ways to respect their religious exercise.

Young Israel of Tampa v. Hillsborough Area Regional Transit Authority (HART)

A cherished community celebration

Young Israel of Tampa is an Orthodox Jewish synagogue serving the growing Jewish population of Tampa, Florida. For decades, Young Israel has hosted many events to share the Jewish faith with the community—such as Chanukah celebrations, Passover Seders, and more.

For the last fourteen years, Young Israel has hosted a community celebration called “Chanukah on Ice.” This family-friendly event features ice-skating, food, music, a raffle, and the lighting of an ice-sculpted menorah—one of the central symbols of Chanukah.

Censoring religious speech 

In 2020, Rabbi Rivkin, vice president of Young Israel, sought to advertise Chanukah on Ice on a nearby bus route operated by the Hillsborough Area Regional Transit Authority (HART). The proposed advertisement included an image of a menorah and invited community members to enjoy “ice skating to Jewish music around the flaming menorah.”

HART, however, refused to run the ad, stating that it “does not allow religious affiliation advertising, as well as banning adult, alcohol, tobacco, and political ads.” When Rabbi Rivkin appealed to HART’s CEO, he was told that Young Israel should strip the central religious image from the ad and delete all reference to the lighting of the menorah—deeply offensive changes that were not possible for Young Israel to make.

Discriminating against religion—because it’s religion—is illegal.  

HART’s ad policy is unconstitutional because it expressly discriminates against religion, banning religious speech on government property. It is also bad policy. It tells religious organizations that they are unwelcome in the public square, and it reinforces that message by grouping religious ads with ads promoting alcohol, tobacco, illegal drugs, obscenity, nudity, profanity, politics, pornography, discrimination, and violence. The First Amendment gives special protection to religion; Tampa tells religion it is unfit for public consumption.

But this isn’t just about transit advertisements. It’s about whether religious messages belong in the public square at all. If religious speech can be banned from public transit, no principle stops bureaucrats from banning religious speech in public parks. Indeed, one of HART’s officials indicated that not even Reverend Martin Luther King Jr. would be allowed to advertise his messages of hope and equality with HART.  

On February 5, 2021, Young Israel filed a lawsuit against HART in the United States District Court for the Middle District of Florida. It is represented by Becket, along with the Jewish Coalition for Religious Liberty and Florida law firm Hopping Green & Sams.

On January 26, 2022, the federal district court granted summary judgment to Young Israel. The court found that HART’s ban on religious advertisements was both discriminatory and standardless. The court also ordered that HART’s religious-ad ban should be permanently prevented from being enforced.

Importance to Religious Liberty: 

  • Free speech: Freedom of speech is not only an inherent human right, but also a fundamental building block of our society. The First Amendment protects the right of religious organizations to participate in the public square—without fear that they must surrender their religious identity as a condition of speaking.  
  • Public square: Religious organizations are crucial to maintaining a free society. Government policies that presume religion does not belong in public life get our best traditions, our bedrock principles, exactly backward.  

Agudath Israel of America v. Cuomo

Can Governor Cuomo target New York City’s Jewish communities?

Governor Cuomo openly singled out Jewish synagogues like Agudath Israel’s for disfavored treatment,  claiming  that “because of their [Orthodox Jews’] religious practices, etc., we’re seeing a spread [of COVID-19]” and threatened to “close the [Orthodox Jewish religious] institutions down.” Although Governor Cuomo openly admitted the supposedly elevated rates of COVID-19 would not be considered serious in many other states, he drew restrictive “Red” lockdown zones around predominately Orthodox Jewish parts of New York City. These zones heavily restricted worship, closed schools, and prevented Jewish families from celebrating holidays while mere blocks away, schools were open and restaurants were serving customers. Far from being scientifically justifiable, Cuomo himself has admitted that his drastic actions were taken out of a concern for public opinion, not public health, saying the lockdown zones were “a fear driven response” and admitting “this is not a policy being written by a scalpel, this is a policy being cut by a hatchet.” As a result, a Brooklyn federal judge found that “the Governor of New York made remarkably clear that this Order was intended to target [Orthodox Jewish] institutions.”

Standing up for equal treatment

In response to this unfair treatment, Agudath Israel filed a lawsuit in federal court on October 8, arguing that the discriminatory nature of Cuomo’s “cluster action initiative” rendered it unconstitutional. After the district court denied an immediate injunction, Agudath appealed to the Court of Appeals for the Second Circuit for an emergency ruling protecting them while the case was being argued in the lower court. On November 9, 2020, the Second Circuit declined, in a 2-1 decision, to stop the restrictions before the case was argued, with Judge Park dissenting. However, recognizing the importance of the case, the Court fast-tracked that briefing and argument in the case. 

On November 16, 2020, Becket, along with co-counsel Troutman Pepper Hamilton Sanders LLP, asked the Supreme Court to issue an emergency injunction halting Governor Cuomo’s discriminatory regulations until the case was decided. Pointing to Cuomo’s own admissions of targeting Orthodox Jews, the fact that the governor’s lockdown zones restricted Orthodox Jewish communities more harshly than other communities with equivalent or higher rates of COVID-19 infection, and the Supreme Court’s robust precedent protecting religious groups from hostile discrimination, Becket asked the Supreme Court to lift the governor’s restrictive “religious gerrymander” until the case was decided in court. On November 25, the Supreme Court granted the injunction, finding that Governor Cuomo’s “rules can be viewed as targeting the ‘ultra-Orthodox [Jewish] community,’” that there was no evidence that the houses of worship who brought the case had contributed to the spread of disease, and that the regulations violated the First Amendment by privileging secular activities over religious exercise.

The Court’s opinion made clear that “…even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

On December 28, 2020 the United States Court of Appeals for the Second Circuit ruled 3-0 in favor of Agudath Israel, halting Governor Cuomo’s 10- and 25-person caps on religious worship while the case is pending.

Lebovits v. Cuomo

A long-standing Jewish tradition 

Opened in 2012, Bais Yaakov Ateres Miriam is an Orthodox Jewish girls’ school in Far Rockaway, New York City, that stands in a long tradition of Jewish schools founded to teach young women about their faith. The first Bais Yaakov school was founded in 1917 in Poland, to provide an alternative to secular education that did not support and educate young Jewish women on the history and traditions of their faith. Today, BYAM celebrates Jewish holidays, holds communal prayers, and engages in group projects and exegetical debates—activities that are central to the traditions of Orthodox Judaism.  

Yitzchok and Chana Lebovits moved to their current home precisely because they wanted to give their girls a great Jewish education at BYAM. But without the opportunity to embrace their unique cultural, linguistic and religious heritage—teaching and learning that can only properly be done in-person—the Lebovits girls and other young Jewish girls are deprived of an irreplaceable opportunity to learn and live out their faith. Yitzchok and Chana are being hindered in passing on their Jewish beliefs and practices on to their daughters.  

In March, BYAM voluntarily transitioned to remote learning to protect their neighbors and in compliance with the law. In the months that followed the school spent thousands of dollars equipping the entire school with Wi-Fi, purchasing additional laptops and tablets for teachers to use while offering remote instruction, and to pay for transportation for teachers who would normally use buses to get to school. Nevertheless, remote learning proved to be a poor substitute for in-person instruction. As the state began to reopen over the summer, BYAM looked forward to opening safely, responsibly and cooperatively.  

And it did just that. In the first month of school, BYAM handed out hundreds of masks and implemented many safety and hygiene protocols to ensure the safety of students and community members, including social distancing and daily temperature checks. The happy result of those comprehensive efforts has been zero cases of COVID-19 in the school. BYAM has thus become a safe haven for girls to gather and learn about their religious heritage.   

Cuomo and de Blasio crack down on Jews 

Unfortunately, the Orthodox Jewish community in New York City has been singled out by the government as the scapegoats for COVID-19 spread since the beginning of the pandemic. In April of 2020, Mayor de Blasio dispersed a Jewish funeral and then threatened them with law enforcement. During the subsequent summer – while Governor Cuomo and Mayor de Blasio praised nearby mass protests, Jewish families were ousted from Brooklyn parks by the New York Police Department acting at the behest of the Mayor  

But, despite doing everything right, BYAM has been caught in New York Governor Andrew Cuomo’s crusade against Orthodox Jewish neighborhoods in Brooklyn. After months of scapegoating Jews for coronavirus infections in New York City, in late September/early October 2020 Cuomo and de Blasio announced a plan to target “microclusters” of COVID-infections in New York City by locking down Jewish neighborhoods and schools. On October 6 – just before three important Jewish holy days – Governor Cuomo issued an executive order that shut impending Jewish celebrations down, claiming that mildly elevated rates of positive coronavirus tests justified extraordinary emergency powers, while at the same time admitting that those elevated rates “would be a safe zone” in many other states.  

Remarkably, by Cuomo’s own admission, schools are not significant spreaders of COVID-19, and the new policy was not driven by science but was made from fear. 

Protecting the fundamental right of religious education

Remote learning has taken a serious toll on the educational opportunities for the Lebovits girls and other BYAM students. Teachers have reported alarming regression in reading skills, had to reteach prayers, and are requesting last year’s math textbooks. In many cases, students have tested a full year below grade level in both Hebrew and English reading.  

The government’s attempt to close BYAM is a direct threat to the future of the Jewish faith tradition that Bais Yaakov schools have been teaching for over a hundred years. By putting Jewish religious education on hold indefinitely, Governor Cuomo and Mayor de Blasio weren’t just halting educational growth, they were stifling the religious exercise of Jewish families, and depriving the Lebovits girls of part of their childhood. 

Becket and the Jewish Coalition for Religious Liberty represented the Lebovits family and BYAM in the federal District Court for the Northern District of New York, where the school asked the court to protect BYAM from future bigotry and to hold Cuomo and de Blasio accountable for violating their First Amendment rights. Shortly after Becket filed the lawsuit, Cuomo reversed his policy and allowed Bais Yaakov Ateres Miriam and other schools in its Far Rockaway neighborhood to open. The case was settled out of court.  

Importance to Religious Liberty:

  • Religious CommunitiesReligious groups have the right to form their own institutions and to pass their teachings down to the next generation. Schools like BYAM, which help preserve the Jewish faith and instill Jewish values in the next generation, are constitutionally protected from government restrictions that single them out for unfair treatment.  

Su v. Stephen Wise Temple

A synagogue’s work at risk

Stephen S. Wise Temple is one of the largest and most prominent Reform Jewish synagogues in Southern California, serving its congregation through worship, community service, and education. But the Temple’s work was put at risk when the State of California claimed it could interfere with the synagogue’s internal decisions about its ministers.

In September 2013, the State of California sued the Temple in state court over whether the Temple gives certain ministers—here, preschool teachers—long enough lunch breaks. Represented by Horvitz Levy, the Temple stood up for its rights, arguing that California has no right to second guess the Temple’s decisions about how its ministers should carry out its religious mission.

The Supreme Court has confirmed autonomy for houses of worship

In March 2016, the trial court agreed with the Temple, basing its decision on the landmark U.S. Supreme Court case Hosanna-Tabor v. EEOC, which Becket won on behalf of a Lutheran elementary school in 2012. In Hosanna-Tabor, the Court unanimously recognized a principle of the First Amendment known as the ministerial exception, which states that the government should not interfere with religious institutions’ decisions about the employment of their ministers – including teachers in religious schools.

The State of California appealed the trial court’s decision, arguing that the ministerial exception does not apply to the Temple in this case. In July 2018, Becket – joined by the Church Of God In Christ denomination, one of the largest African-American denominations in the United States – filed a friend-of-the-court brief at the California Court of Appeals for the Fourth Appellate District. On March 8, 2019, the Court of Appeals ruled against the Temple, and on June 19, 2019, the California Supreme Court denied further review.

Houses of worship have the right to make their own decisions when it comes to choosing how their religious ministers will conduct religious ministry. Thus, the Temple, not the government, gets to determine how ministry should be performed by the ministers who teach Jewish religious values and traditions to young children.

Importance to religious liberty:

  • Freedom of religious groups to choose how their ministers will minister: Becket’s 2012 Supreme Court case Hosanna-Tabor set a precedent on this issue for churches.
  • Freedom of religious groups from state intrusion on religious affairs: Both church and state are better off when the state isn’t evaluating the internal religious affairs of a religious ministry.

Chabad of Key West v. FEMA

Houses of worship need not apply

Following a natural disaster, FEMA provides disaster aid grants to nonprofits like zoos, homeless shelters, and stamp clubs, but for many years, its policy made it clear that houses of worship need not apply. Despite FEMA’s recognition that synagogues, mosques, and churches are essential partners in the recovery process, FEMA’s policy denied houses of worship relief funds solely because they are religious.

This meant synagogues like the Chabad of Key West and the Chabad of the Space Coast, which suffered serious wind and water damage during hurricane Irma, were left out in the cold. Despite pitching in to help their neighbors in recovery efforts, the synagogues didn’t know how they were going to repair their own facilities.

Becket defends equal treatment

In November of 2017, Becket filed a lawsuit on behalf of the Chabad of Key West and the Chabad of Space Coast in federal district court in Florida, pointing out that FEMA’s discriminatory policy was a violation of the First Amendment, particularly in light of the Supreme Court’s ruling in Trinity Lutheran v. Comer, which protects the right of religious organizations to participate in widely available programs on equal footing with secular organizations.

In January of 2018, responding to pressure from litigation, FEMA changed its policy, putting an end to decades of discrimination against houses of worship. On February 9, 2018, Congress passed a bill and the President signed into law a bill that codified FEMA’s policy, ensuring that Chabad of Key West, Chabad of the Space Coast, and other houses of worship will be treated equally alongside other charitable organizations in the future. Since FEMA began treating the synagogues like all other disaster relief applicants, they were able to dismiss their lawsuit on February 13, 2018.

Becket also filed a similar lawsuit in Houston, Texas in Harvest Family Church v. FEMA.


Importance to religious liberty:

  • Public Square: Because religion is natural to human beings, it is natural to human culture. It can, and should, have an equal place in the public square.
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Grussgott v. Milwaukee Jewish Day School, Inc.

The Milwaukee Jewish Day School welcomes a broad diversity of Jewish students from the surrounding community. The school’s basic Jewish beliefs are broadly incorporated into its curriculum, with students attending daily prayer, studying Hebrew, observing Jewish holidays and the Sabbath, and studying the Torah. The Jewish faith drives the school’s mission, and the school’s teachers are an integral part of accomplishing that mission.

But one former teacher claimed the school is not “Jewish enough” to qualify for First Amendment protection from government meddling in the school’s internal religious decisions.  That protection—known as the “ministerial exception”  is the requirement that the government stay out of religious groups’ selection of their own religious leaders. (For a more detailed explanation, see this video.) The teacher taught Hebrew and Jewish studies, taught directly from the Torah, and led the students in daily regular prayer—but she claimed she was not a religious leader or part of the school’s religious mission.

In September 2016, the former teacher sued the school in a Wisconsin federal district court, claiming she had been unlawfully terminated. The court rightly rejected her arguments and ruled that a teacher like her, who regularly led prayer and taught religious studies, qualifies as a minister under the First Amendment’s ministerial exception—and that the school has the right to choose its own religious leaders. Displeased with the court’s decision, the teacher appealed to the U.S. Court of Appeals for the Seventh Circuit. Becket filed a friend-of-the-court brief in October 2017, urging the Seventh Circuit to protect religious schools of all faiths from government interference. In February 2018, the Seventh Circuit ruled in the school’s favor, adopting Becket’s position that the school was without question a religious institution protected by the ministerial exception. And as Becket further pointed out, the Court’s opinion concluded that the plaintiff’s “role as a teacher of [ ] faith to the next generation outweighed other considerations” and showed that she was covered by the ministerial exception. Becket’s amicus brief called for this result, emphasizing that the ministerial exception applied because the plaintiff’s “role required her to perform important religious functions for the school,” particularly because she “taught the tenets of the faith to the next generation.”  In November 2018, the U.S. Supreme Court declined to hear the appeal, leaving the decision in favor of the school in place.

The Seventh Circuit’s opinion in favor of Milwaukee Jewish Day School is significant, because it marks the first time that the Seventh Circuit has defined and confirmed the scope of ministerial exception since the U.S. Supreme Court’s landmark 9-0 decision in Hosanna-Tabor, where Becket defended a Lutheran church school’s right to choose its own teachers.

The school was represented by Kravit, Hovel & Krawczyk (Aaron Aizenberg).

Importance to religious liberty

  • Freedom of religious groups to choose their own leaders: Becket’s 2012 Supreme Court case Hosanna-Tabor set a precedent on this issue for churches.
  • Freedom of religious groups from state intrusion on religious affairs: Both church and state are better off when the state isn’t meddling in the internal religious affairs of a religious ministry.

Gagliardi v. The City of Boca Raton, Fla.

Searching for a house of worship

The Chabad of East Boca is an Orthodox Jewish synagogue in Florida that provides religious worship, outreach, and educational services. Like many other faith groups, it needed a house of worship for its congregation. After searching for years, the Chabad finally found the ideal location, took all the necessary steps to build, and—after a long series of public meetings—received unanimous city council approval to move forward in 2015. The approval came under a zoning law passed in 2008 that gave all houses of worship equal rights to build. But a small opposition group, led by a New York attorney, sued in federal court to stop the synagogue from being built.

Opposition fueled by anti-Semitism

Beginning in 2007, the Chabad experienced well-organized and well-financed hostility from a small group. Even after the building was unanimously approved in 2015, two landowners hired a New York attorney—notorious for her opposition to religious civil rights laws—and filed a lawsuit in federal court to prevent the synagogue’s construction. The lawsuit made the bizarre claim that allowing a house of worship equal access to build on private land violated the Constitution’s Establishment Clause.

The small group openly admitted that some other group’s opposition to the Chabad was driven by anti-Semitism. They claimed that allowing the synagogue to be built discriminated against them as Christians—even though the 2008 city ordinance they challenged granted equal access for all faith groups, local Christian congregations supported the synagogue, and they had never been prevented from building a church. They also claimed that building the 2-story synagogue would cause “inevitable” floods and prevent emergency vehicles from accessing the area, even though the area is already surrounded by 22-story condos and strip malls.

In addition to fighting the lawsuit, the Chabad also suffered a string of attacks in the last few years. A teenage member of the synagogue was physically assaulted on a public sidewalk and told to “go back to Auschwitz.” The ministry’s temporary home was also vandalized repeatedly: its glass mezuzahs containing sacred scripture were destroyed and stolen, and a glass synagogue door was smashed.

Winning the right to build

The Chabad twice urged a federal court to reject the lawsuit, and it won both times, first in July 2016 and then again in March 2016. The court went so far as to find that the plaintiffs “fail[ed] to allege any injury at all.” But in April 2017, the plaintiffs prolonged the case by appealing to the Eleventh Circuit. On May 7, 2018, the Eleventh Circuit granted the Chabad its third victory, protecting the Chabad’s right to build a synagogue.

The Chabad was represented by Becket and Kirkland & Ellis.

Importance to religious liberty

  • Property rights: Local governments must treat all houses of worship equally when it comes to property rights, zoning laws, and permit processes. A Jewish synagogue must be afforded the same access to building permits as a Christian church or any other house of worship.
  • Religious communities: Religious communities have the right to operate according to their religious beliefs even if the wider community around them disagrees with those beliefs.

Moussazadeh v. Texas Department of Criminal Justice

Prisoners are people too

Prisoners lose many of their physical rights when they enter prison, but they do not lose their dignity. They may be unpopular, but they still have human rights.

The Religious Land Use and Institutionalized Person Act (RLUIPA) was established to protect those rights. Congress unanimously passed RLUIPA in 2000 because prison bureaucrats around the country were arbitrarily banning Bible studies, confiscating sacred texts, denying access to the sacraments, and prohibiting religious diets to prisoners. These arbitrary bans not only undermined the rehabilitation of prisoners, but also stripped them of their dignity by denying their right to seek God.

A Texas-sized denial of dignity

Max Moussazadeh is an Orthodox Jew who was imprisoned in Texas and denied kosher meals. In October 2005, Becket sued the State of Texas on Mr. Moussazedeh’s behalf, arguing that the state was arbitrarily denying Mr. Moussazadeh’s religious freedom in violation of RLUIPA. The vast majority of prison systems across the U.S. provide Jewish prisoners with kosher meals, and have done so for many years. Texas could do so at a cost of less than 0.02% of the prison system’s annual food budget.

Victory and freedom

Thanks to Becket’s and Latham & Watkins’ lawsuit — which lasted twelve years and included two victories at the U.S. Court of Appeals for the Fifth Circuit — the Texas prison system established a kosher diet plan and began providing Mr. Moussazadeh and all Orthodox Jewish inmates with kosher meals. Mr. Moussazadeh then put his lawsuit on hold, and ultimately dropped the lawsuit in 2017 after being released from prison.

Becket has also brought successful kosher meal cases against the states of Florida and Georgia, and assisted in a similar victory against Indiana. In 2015, it won a unanimous Supreme Court victory in Holt v. Hobbs, a landmark case protecting the right of all prisoners to peacefully practice their faith.

 

Congregation Jeshuat Israel v. Congregation Shearith Israel

Centuries ago, the famous Jewish silversmith Myer Myers crafted sacred rimonim, finials that ornament the Torah scroll in a Jewish synagogue. Today these ancient religious artifacts remain safe under their rightful ownership according to Jewish law, thanks to a court victory protecting the right of houses of worship to make property contracts, just like all Americans.

A tale of two congregations

The case involves both the nation’s oldest Jewish synagogue—Congregation Shearith Israel—and the oldest Jewish synagogue building in the U.S., the Touro Synagogue building in Newport, Rhode Island. Shearith Israel was founded in 1654, and the Touro Synagogue building was built in 1763.

When Newport’s Jews faced persecution during the American Revolutionary War, they fled Newport and the synagogue building, many for New York. Without a congregation in Newport, Shearith Israel took over ownership of the synagogue, along with sacred ritual items such as the rimonim. When Jews returned to Rhode Island in the late 19th Century, Shearith Israel began leasing the synagogue and its sacred artifacts to a new congregation, Jeshuat Israel, under the agreement that they follow Shearith Israel’s religious practices.

In 2011, Jeshuat Israel wanted to sell the rimonim to the Boston Museum of Fine Arts, which Shearith Israel believed violated Jewish law and their longstanding lease agreement.

A property battle over the nation’s oldest synagogue

Jeshuat Israel went to court and in 2016 a federal district court judge ruled against Shearith Israel, saying that they were not the owners of the synagogue or the rimonim, and gave control of both to Jeshuat Israel. Instead of reviewing the two congregations’ legal agreements, the district court put its own spin on the relationship between the two congregations, ignoring the First Amendment principles that guarantee religious groups the right to make legally binding agreements.

Shearith Israel appealed to the First Circuit Court of Appeals in Boston, and in October 2016, Becket filed a friend-of-the-court brief in support of Shearith Israel. Becket argued that the lower court should not have tried to decide issues concerning Jewish religious practice and instead should use secular legal documents to determine religious property disputes just as it would for any other organization. Houses of worship have the right to establish enforceable contracts, just like any other property owner.

The court heard oral argument in the case in March 2017, and in August, the court adopted the arguments in Becket’s brief and ruled in favor of Shearith Israel. Written by retired Supreme Court Justice David Souter, Judge Lynch, and Judge Baldock, the opinion ruled that Shearith Israel’s ownership of the colonial-era building and centuries-old artifacts should be enforced. In June 2018, the First Circuit let stand its decision in favor of Shearith Israel.

In March 2019, the Supreme Court declined to hear the case, leaving in place Shearith Israel’s victory.

Abeles v. Metropolitan Washington Airports Authority (MWAA)

Like millions of Jews worldwide, Susan Abeles celebrates the religious festival of Passover, considered one of the most important holidays in Judaism. For 26 years as an employee of the Metropolitan Washington Airports Authority (MWAA) Susan would take four days off to observe the religious holiday. Each year she would submit the request with ample notice and send multiple email reminders of her upcoming time off. But in 2013, when she returned to work following Passover, her supervisors accused her of following leave protocol improperly. They eventually drove Ms. Abeles to retire early.

Ms. Abeles sued the MWAA for violating her right to observe her religious faith. In a friend-of-the-court brief Becket argued: The Metropolitan Washington Airports Authority claims that it is not strictly a government entity and so does not have to follow the Religious Freedom Restoration Act (RFRA), giving it free rein to avoid all anti-discrimination laws and even terminate Jewish employees without consequence. But Becket and additional amicus the American Jewish Committee argue that MWAA is not above the law. Their brief states, “Can a governmental entity wielding the full force of law, armed with police and eminent domain powers and tasked with the oversight of two of the busiest airports in the country, properly declare itself exempt from the reach of both state and federal anti-discrimination law? …the law says no.”

A Virginia federal district court ruled against Ms. Abeles, and she appealed to the Fourth Circuit Court of Appeals. In June 2016 Becket and the American Jewish Committee filed a friend-of-the-court brief on behalf of Ms. Abeles, who is represented by Nathan Lewin of Lewin & Lewin. In January 2017, a panel of the Fourth Circuit ruled against Susan Abeles. She appealed that ruling to the entire court, but was denied. In July 2017, she appealed to the U.S. Supreme Court. In August 2017, Becket and Jews for Religious Liberty filed a friend-of-the-court brief urging the high court to take up the case, reverse the Fourth Circuit’s decision and hold MWAA accountable to RFRA. In October 2017, the Supreme Court declined to hear the case.

Central Rabbinical Congress v. New York City Department of Health & Mental Hygiene

This case involves an unprecedented government regulation of Jewish religious circumcision practices. Last year the New York City Department of Health and Mental Hygiene issued a new circumcision regulation. It penalizes Jewish rabbinical officials known as mohels who engage in the millennia-old circumcision practice of metzitzah b’peh unless the mohels force the infant boy’s parents to sign a form stating the City’s disapproval of the religious practice. The mohels believe the form to be both factually false and an unwarranted interference in a religious practice that has gone on for literally thousands of years.

Represented by Jones Day, several rabbis who act as mohels, along with several Orthodox Jewish rabbinical and community organizations, sued in Brooklyn federal district court, raising both freedom of speech and freedom of religion claims. The federal district court denied the rabbis’ request for an injunction against the city’s regulation, holding that as long as there was some plausible rational basis for the regulation, it would be valid. The rabbis then appealed to the Second Circuit Court of Appeals in New York.

Becket filed an amicus brief in the appeal along with Prof. Michael McConnell of Stanford Law School, arguing that because New York City’s regulation targeted a specific religious practice, the highest form of judicial constitutional review — “strict scrutiny” — was required under the Free Exercise Clause of the First Amendment. That is especially so because of documented levels of strong hostility towards Orthodox Jews and their religiously motivated practices in New York and surrounding municipalities. Becket did not offer an opinion on whether New York City’s regulation was justified by the health interests it is claiming to protect, only that because of the weighty interests involved, the proper level of constitutional scrutiny should have been applied by the district court judge. The brief has engendered much discussion within New York and elsewhere, particularly because it puts a spotlight on increasing government attacks on Orthodox Jewish practice in New York City and elsewhere.

On August 15, 2014, the Second Circuit ruled in favor of the Orthodox Jewish mohels, largely adopting the arguments made in Becket’s brief. The court sent the case back to the district court for the application of “strict scrutiny.”

U.S. v. Florida Department of Corrections

Prisoners are not popular, but they are human. That is why Becket defends religious freedom for prisoners.

In 2000, Congress discovered that government bureaucrats were routinely trampling religious freedom in prison. They were needlessly confiscating sacred texts, breaking up worship meetings, and banning religious diets. So Congress unanimously passed a law that forbids arbitrary restrictions on religious freedom in prison.

Invoking that law, Becket defended the rights of religious prisoners in Florida for over a decade. Until July 2016, Florida’s was one of the last prison systems in the country that denied its inmates religious appropriate diets. Becket sued Florida twice over the denial of a kosher diet—first in 2002, then in 2012. Both times it received a favorable result on behalf of one Jewish prisoner. Then represented by the Department of Justice, the United States government itself sued the Florida Department of Corrections on behalf of all observant prisoners.

In 2015, a federal district court ordered Florida to begin providing kosher meals for all observant Jewish inmates, and the Department appealed to the Eleventh Circuit Court of Appeals. Becket, represented by the global law firm Jones Day, filed an amicus brief in March 2016 urging the protection of the religious rights of all prisoners. The brief points out that at least 35 states and the federal government provide kosher diets to Jewish prisoners, and there is no reason the Florida Department of Corrections can’t do the same. The court heard oral arguments in July 2016, and two days later it affirmed the district court’s order to provide religious diets for observant Jewish prisoners. In October 2016, in another case that Becket supported with an amicus brief, the Court ruled that the Department must provide a religious diet for a Muslim inmate.

Becket, which has successfully represented or supported religious prisoners in Georgia, Texas, Indiana, and in past Florida cases, has never lost a case concerning a prison system’s denial of religious diets. In 2015, it won a landmark, 9-0 ruling in favor of prisoners at the U.S. Supreme Court.

Rich v. Buss

A prisoner’s choice: Faith or food

What if you had to choose between practicing your faith and receiving adequate nutrition? That choice confronted Bruce Rich, an Orthodox Jewish prisoner. The reason? Mr. Rich is a Florida inmate, and Florida was one of the last remaining states in the country to deny kosher diets to Jewish prisoners.

Mr. Rich has kept kosher his entire adult life. In prison, he observes the Sabbath and is seen as a rabbi to other Jewish prisoners, teaching the Torah and serving as cantor during religious services. Mr. Rich believes that keeping a kosher diet is not a voluntary endeavor, but a fundamental tenet of his faith. Because he was denied a kosher diet, on two different occasions Mr. Rich was forced to go without regular meals for over a month. Mr. Rich sued in 2010 in federal district court, which ruled against him in 2012.

Becket defends religious liberty behind bars

In 2012, Becket filed an appeal on behalf of Mr. Rich, arguing that denial of a kosher diet violates the Religious Land Use and Institutionalized Persons Act (RLUIPA)—a landmark civil rights law designed to protect religious freedom in prison. Congress enacted RLUIPA unanimously in 2000, finding that, “[w]hether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.”

In response to Mr. Rich’s lawsuit, Florida claimed that denying a kosher diet was necessary to control costs and maintain security. But at the time, 35 other states and the federal government already provided kosher diets without problems of cost or security. And from 2004 to 2007, Florida itself provided a Jewish dietary program that cost only a fraction of one percent of its annual food budget and did not result in any security problems.

Unanimous victory for Jewish inmates

In May 2013, the Eleventh Circuit Court of Appeals ruled unanimously in Mr. Rich’s favor, finding that “the evidence submitted by [Florida] … is insubstantial.” The court said that Florida made only “meager efforts to explain why Florida’s prisons are so different from the penal institutions that now provide kosher meals.” It then sent the case back to the district court.

Shortly after, a district court in a separate case, relying on the Eleventh Circuit’s decision, ordered Florida to begin providing a kosher diet to all observant Jewish inmates, including Mr. Rich, no later than July 1, 2014. In response to this victory, Mr. Rich voluntarily withdrew his lawsuit.

In addition to winning Mr. Rich’s appeal at the Eleventh Circuit, Becket has won previous kosher diet cases against Florida, Georgia, and Texas, and assisted in a similar victory against Indiana. In fact, Becket has never lost a kosher diet case against a prison system.

Importance to religious liberty:

  • Individual freedom: Individual religious freedom encompasses more than just thought or contemplation—it involves action. Individuals must be free to follow their religious convictions into practice, including when they are incarcerated.
  • RLUIPA: Like the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed with bipartisan support. RLUIPA ensures religious liberty in two areas where it is most vulnerable: land use and prisons.

New Zealand Kosher Ban

We filed an amicus brief in favor of New Zealand’s Jewish community, arguing that New Zealand’s ban on kosher slaughter of chicken violated New Zealand’s international legal commitments.

As cited in Becket’s brief, “The Code infringes on the right of New Zealand’s Jews to manifest their religious beliefs because it makes it impossible for them to eat meat on the Sabbath and certain holidays.” Becket’s brief pointed out that the ban on kosher slaughter violated New Zealand’s international human rights treaty obligations and that it put New Zealand in a class with the anti-Semitic governments of 1930s Europe that passed almost identical bans.

Becket also explained that many democratic governments, including the United States government, have determined that kosher slaughter is entirely humane for the slaughtered animal.

Shortly after Becket filed its brief, the New Zealand government agreed to revoke the law.

Matter of Congregation Kol Shofar

Congregation Kol Shofar is a Conservative Jewish synagogue in Tiburon, California, just north of San Francisco. In 2006, the Tiburon Planning Commission denied the synagogue’s plan to make much-needed improvements to its existing sanctuary, despite the Congregation’s stated willingness to accept reasonable conditions.

That’s when the synagogue turned to the Becket Fund. In a series of legal opinion letters to Tiburon’s elected officials, the Becket Fund warned that the denial of building permits violated both state and federal law.

The Becket Fund noted that denying Kol Shofar the ability to make improvements to its facilities resulted in a substantial burden on the Congregation’s religious activities. Space constraints would force synagogue services—particularly on Rosh Hashanah and Yom Kippur—to be held at times incompatible with Jewish ceremonial requirements, and limited the synagogue’s ability to host community religious events. The Becket Fund further observed that Kol Shofar was the only Jewish congregation in Tiburon, and that churches in the area had been permitted to expand their facilities without bureaucratic obstruction. The town had previously claimed that permitting Kol Shofar to build would result in “incompatibility” with the surrounding neighborhood: a textbook example of unconstitutional viewpoint discrimination.

As a result, Tiburon compromised and allowed Kol Shofar to expand its sanctuary, allowing the Jewish congregation to practice their faith in peace.

“I am writing to express our synagogue’s profound appreciation for the critically important work of The Becket Fund. It was a delight and an honor to work with you. We are grateful that you agreed to take us on as a client – we fearlessly predicted we would add to the mettle of the Becket Fund!” — Kol Shofar Congregation

*Photo of Kol Shofar synagogue. Photo credit: Michael Loeb Photography.  Used by Permission.

Benning v. Georgia

Ralph Benning is a Torah observant Jew who eats kosher food, wear a yarmulke, observes his faith’s specific holy days and performs religious rituals. He was an inmate in the Georgia prison system.

Benning asked a number of state and prison officials to provide him with a kosher diet and permit him to wear a yarmulke. When prison officials denied Benning’s requests, he had no choice but to file suit. Georgia moved to dismiss, arguing that the Religious Land Use & Institutionalized Persons Act (RLUIPA) was unconstitutional because (Georgia claimed) it exceeded the authority of Congress under the Spending and Commerce Clauses, and violated the Tenth Amendment and the Establishment Clause.

The district court dismissed some of Benning’s claims and concluded that RLUIPA was constitutional, but allowed that issue to be appealed. On appeal to the Eleventh Circuit, Judge Pryor, writing for a unanimous panel held that “RLUIPA was validly enacted under the Spending Clause and does not violate either the Tenth Amendment or the Establishment Clause of the First Amendment.”

After the case went back to district court, Georgia settled the case by creating a kosher dietary program for all observant Jewish prisoners, including Ralph Benning.

Cotton v. Florida Department of Corrections

Alan J. Cotton was a prisoner in Florida’s Everglades Correctional Institution who tried for several years to get the state Department of Corrections to provide him with kosher meals. Cotton was born and raised in the Jewish faith, and was a “sincere adherent of Orthodox Judaism” who “believes he is required to keep a kosher diet” in order to “conform to the divine will of God as expressed in the Torah.”

Such requests for a special diet are not unusual, and federal prisons in Florida routinely accommodate requests for kosher food. Cotton began his battle for a kosher diet in October 2000. Several requests were denied, and a subsequent appeal was rejected.

In September 2002, Becket filed a lawsuit against the Florida Department of Corrections, charging violations of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), the First and Fourteenth Amendments to the U.S. Constitution, the Florida Constitution, and the Florida Religious Freedom Restoration Act of 1998.

In October 2003, the Florida Department of Corrections finally settled, allowing Cotton to receive kosher meals according to his Orthodox Jewish faith.

Temple B’nai Sholom v. City of Huntsville

Temple B’nai Sholom is a Reform Jewish synagogue with a long history in Huntsville, Alabama. Founded in 1876, it has occupied its present location since 1899. The Temple sanctuary has been designated a Historic Building, and was extensively renovated in the mid-1990s.

In the 1970s, the Temple purchased two adjacent pieces of property in order to have room for future expansion. Each parcel contained a house, neither of which were of historic significance, although the entire area lies within an historic preservation district. One of the houses was demolished many years ago without any objection from the city or the Historic Preservation Commission, and other property owners in the area, including several nearby churches, have been allowed to demolish similar buildings.

On September 15, 2000, city code enforcement officials issued a notice declaring the house at 406 Clinton Avenue unsafe, and ordering the Temple to either “repair or demolish” the structure. Since the Temple intends to use the site for religious activities, including eventual expansion of the sanctuary, it sought permission of the Huntsville Historic Preservation Commission to demolish the house.

On November 20, 2000, the Commission refused, leaving the Temple in an impossible “Catch 22” situation: ordered by one city agency to demolish the house, and prohibited by another from doing so. To add insult to injury, the city then sought a criminal misdemeanor conviction against the Temple for its failure to obey the order to “repair or demolish.”

Finally, on May 8, 2001, Temple B’nai Sholom filed suit in Madison County Circuit Court against the City of Huntsville, the head of the city’s Inspection Department, and the administrator of the city’s Historic Preservation Commission. On June 1, 2001, defendants moved to remove the case from county court and move it instead to U.S. District Court for the Northern District of Alabama.

In October 2001, the Becket Fund for Religious Liberty joined the case, and an amended complaint was filed on October 23, 2001. It charged the city with violations of the Constitutions of Alabama and the United States and RLUIPA. On November 2, 2001, the city moved to strike the amended complaint and renewed their motion to dismiss. On November 6, Judge Smith summarily denied both motions. In February, 2002, Alabama Attorney General Bill Pryor filed a motion for leave to join the suit on the Temple’s side, to defend the state’s Religious Freedom Amendment. (Temple B’nai Sholom v. City of Huntsville, et al., CV-01-S-1412-NE)

Interestingly, the City of Huntsville itself had burned down a number of houses of approximately the same vintage as the house at 406 Clinton Avenue at about the same time it took action against Temple B’nai Sholom. City Community Development Director Jerry Galloway was quoted in an article in the Huntsville Times as saying, “We have an obligation to the public to get rid of stuff that’s a danger to the public health and safety, and this property was.”

Although the city initially adopted a strategy of challenging the constitutionality of RLUIPA and sought the assistance of the statute’s most vehement critic, law professor Marci Hamilton, in the end it agreed to settle the case “in order to avoid the expense, inconvenience, and uncertainty of litigation.” (Along the way, both the City of Huntsville and the Alabama Preservation Alliance joined in an amicus brief challenging RLUIPA’s constitutionality, written by Hamilton and submitted to the Seventh U.S. Circuit Court of Appeals in C.L.U.B. v. City of Chicago.)

The settlement, approved by the Huntsville City Council on June 26, 2003, provides that the City of Huntsville will purchase the house at 406 Clinton Avenue for $25,000 and will pay to have the house moved to a vacant lot that the city owns at the corner of Dallas and Walker Streets. The settlement agreement also commits the city’s Historic Preservation Commission to “work with the Temple in good faith toward the issuance of a Certificate of Appropriateness approving the Plans [for the Temple’s expansion] and the project implementing the Plans within a reasonable and customary time period.”

Having given the Temple everything it sought in the lawsuit, the city nevertheless inserted language at the end of the agreement stating that it still refuses to concede that either RLUIPA or the Alabama Religious Freedom Amendment are “valid laws.”

Congregation Kol Ami v. Abington Township

Since its founding in 1994, Congregation Kol Ami, a Reform Jewish synagogue, has held worship services and other religious activities at a variety of temporary locations in the greater Philadelphia area.  In 1997, it began searching for a permanent house of worship, and in early 1999, it began negotiations for the purchase of a property owned by a Catholic order of nuns.

In March 2001, the Abington Township Zoning Hearing Board refused to allow the congregation to use the facility for religious purposes, denying permission to continue “the prior nonconforming religious use of the Sisters’ property,” despite the fact that it had granted such permission just five years earlier to a different religious group based on the same set of facts. These modified township zoning laws resulted in an unreasonable burden on religious freedom. Furthermore, during hearings on Congregation Kol Ami’s application, some neighbors objected to the congregation’s move, with one stating flatly, “I don’t want a synagogue in my backyard.”

In April 2001, Becket represented Congregation Kol Ami in a lawsuit against Abington Township for discrimination against Jewish places of worship.

After prevailing in court, Kol Ami was able to settle the case on favorable terms.