Friend-Of-The-Court Briefs Filed In Kosher-Food And Beard-In-Prison Cases


beardRepresenting an Orthodox Jewish coalition, Lewin & Lewin, LLP, filed friend-of-the-court briefs on May 28 and May 29 in the United States Court of Appeals for the Eleventh Circuit and in the Supreme Court of the United States on two important religious-liberty issues: (1) Should Florida be required to provide kosher meals to inmates of its prisons? (2) May State prisons maintain “no-beard rules” under which men may not grow beards exceeding one-quarter of an inch?

Both briefs were written by noted constitutional litigator Nathan Lewin for the National Jewish Commission on Law and Public Affairs (“COLPA”). Mr. Lewin said, “How a government treats the religious convictions of its prisoners is a token of its respect for the faiths of its free citizens.”

(1) Even after an individual prisoner in a Florida prison had won his lawsuit to require that he be given kosher food, the Florida prison authorities terminated a kosher-food program because there was a “participation explosion” in the demand by Florida’s non-Jewish inmates for kosher meals. The United States Department of Justice sued Florida under the civil rights laws, and the State appealed a decision by the federal trial judge directing it to provide kosher meals. Florida argued that the cost of giving kosher meals to every inmate who requests it makes the program too costly.

The friend-of-the-court brief noted that the federal law explicitly authorized “government to incur expenses . . . to avoid imposing a substantial burden on religious exercise.” It also cited the large expense that the United States and individual States incur when they subsidize religious activity by granting tax exemptions and tax deductions as proof that an additional “drop in the bucket” like the added cost of providing kosher food in prisons does not justify denying religious liberty.. Finally, the brief said, it is “strikingly unjust” to deny kosher food to truly observant prisoners “because the total cost of providing for the honest claimant together with the charlatan is too high.”

(2) The Supreme Court will hear and decide in its next Term whether Arkansas can prohibit a Muslim prisoner from growing a beard that exceeds one-quarter inch. COLPA’s amicus curiae brief supports the Muslim prisoner and urges the Supreme Court to go beyond the one-quarter-inch standard and to rule that what 39 jurisdictions do – permitting beards of any length – is required by the constitution. The brief warned that litigation over whether facial hair is to be permitted at all is highly contested, and that Jewish prisoners will be forced to shave off their beards during litigation. The brief described cases in which Jewish plaintiffs wearing beards went to court to be able to keep their beards while serving as an Air Force or Army Chaplain and as a New York City uniformed policeman.

Both briefs described for the courts the importance of the religious practice of kashrut and of wearing beards. The briefs cited and discussed traditional Jewish sources such as Maimonides, the Chofetz Chaim, and the Lubavitcher Rebbe. The briefs also described the sacrifices made over the ages to keep kashrut and the descriptions of Jewish males as men who wear beards, including the cruel Nazi practice of publicly cutting the beards of Jews.

The organizations that joined both briefs were: Agudath Harabbanim of United States and Canada, Agudath Israel of America, Aleph Institute, Rabbinical Alliance of America, Rabbinical Council of America, National Council of Young Israel, and the Union of Orthodox Jewish Congregations of America. Attorneys Dennis Rapps of COLPA and Alyza Lewin of Lewin & Lewin, LLP, were also signatories on the briefs.

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