How secure are Jewish religious rights in the US?

Litigation over kosher food in state prisons welcomed less today by legal order than prohibited, discouraged conduct was decades ago.

By NATHAN LEWIN
arizona jail_311 (photo credit: ASSOCIATED PRESS)
arizona jail_311
(photo credit: ASSOCIATED PRESS)
Do American prisons provide kosher diets for inmates who profess to be observant Jews? Most Israelis – and probably nine of 10 Israeli judges – would instinctively assume that they do.
They would be surprised to hear that until last week – when a federal appeals court rejected their argument – prison authorities of Florida (a state with a Jewish population that exceeds 600,000) claimed it was too expensive to provide kosher food to Bruce Rich, acknowledged to be an Orthodox Jew, who was serving a life sentence in Florida’s largest and oldest prison.
Rich represented himself in filing a lawsuit to get a kosher diet. His claim was vigorously opposed by the Florida Department of Corrections.
After Rich lost in the lower court, the Becket Fund for Religious Liberty took over his appeal pro bono. Jewish groups then came in to support his claim with friend-of the- court briefs, including one that I drafted for the National Jewish Commission on Law and Public Affairs (“COLPA”) and seven Orthodox national Jewish organizations.
Federal prisons have been required to provide kosher diets since Meir Kahane won a lawsuit against the United States Bureau of Prisons in 1975. But state prisons have lagged behind. In May 2011, the federal court of appeals headquartered in Chicago had a case brought by inmates in Indiana prisons who had been denied kosher diets. The Indiana officials were appealing from a lower-court decision that directed them to provide kosher food. When they realized that they were confronting a formidable group of adversaries, they dropped their appeal and agreed to make kosher food available to religiously observant prisoners.
The right of a Jewish prisoner in a Texas state prison to kosher food was upheld by a federal appeals court this past December, although the same court of appeals had, in 2007, rejected a demand for kosher food in the Texas state prisons (which house approximately 900 Jewish inmates).
These recent active controversies over so fundamental a religious-liberty issue as kosher food in prisons demonstrates how slowly and reluctantly the civil-rights claims of religious observers are being recognized and upheld by American courts and government agencies responsible for the administration of justice. I am currently litigating in a New York federal court over the right of a New York City police recruit to maintain a short religiously obligatory beard and recently settled a similar case against the United States Army that initially refused to accept a Chabad Jewish chaplain who refused to shave or trim his beard.
Compare the resistance to these religiously based claims to the sea change in attitude over the past half century regarding gender discrimination and discrimination based on sexual orientation. In 1967, when I was a young lawyer with the Department of Justice, I was assigned to argue in the Supreme Court in support of the Immigration Service’s decision to deport a Canadian citizen who had been admitted to the United States.
His mother, stepfather and three siblings lived in the United States, so deporting him was singularly cruel.
The only grounds for his deportation were that he admitted to having committed homosexual acts in Canada and in the United States.
The Immigration Service classified him, on the basis of these admissions, as deportable because he was “afflicted with psychopathic personality.”
By a six-to-three vote, the Supreme Court approved his deportation. Only justices Douglas, Brennan and Fortas would have permitted this acknowledged gay young man, who was otherwise a model US permanent resident, to remain in the United States with his immediate family. Conduct that was considered “psychopathic” in 1967 is now viewed as so firmly protected by the Constitution that at least four Supreme Court justices will probably invalidate state laws that give homosexual union less respect than heterosexual marriage.
Any smidgen of gender discrimination is also condemned by today’s society. Yet in 1961, the Supreme Court issued a decision that permitted a woman to be charged with murder by a Florida grand jury that had minimal female representation because women were automatically exempted on request and permitted to serve on the grand jury only if they volunteered. Justice Harlan’s opinion said that women were “still regarded as the center of home and family life” so that it was permissible to keep them off grand juries unless they volunteered.
No Supreme Court justice dissented.
Why has religious observance in the United States not benefited during the past half century from the increased tolerance and respect given by government and the private sector to changing sexual mores and to attitudes to women? Recognition of the rights of these previously disadvantaged groups (as well as accommodation to the disabled) has taken giant steps during this time, but accommodation to the religious observance of minorities is still made grudgingly, if at all.
Religious observance of dietary restrictions was neither criminal nor even discouraged years ago. Yet the flurry of recent litigation over kosher food in state prisons demonstrates that the legal order welcomes it less generously today than it welcomes conduct that was prohibited or severely discouraged decades ago.The author is a Washington, DC, lawyer who has argued 28 cases in the US Supreme Court and is an adjunct lecturer on Supreme Court litigation at Columbia Law School.