Welcome to the Jewish and American Law Blog of JLaw.com. This blog is accessible at jlaw.com/Blog, or through a link on any of the JLaw.com pages. Also, for now, the blog can still be found at jewishandamericanlaw.wordpress.com.
I hope everyone continues to enjoy and learn from the posts. As always, feel free to comment on any of them, or contact me with any ideas or suggestions.
— Evan (Chaim) Kusnitz
President Obama took the oath of office for his second term this week, and like many chief executives before him, he ended his oath with the words “So help me God.” Behind those words lies a longstanding tradition, but also a contemporary controversy. More importantly, though, they serve as a reminder to all Who is really in control.
Invoking God’s Name in the Presidential Oath of Office
The U.S. Constitution, Art. II § 1, states that before the President takes office he must take the following oath:
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Nowhere does the Constitution require the mention of God’s name in an oath.(1) However, legend has it that George Washington used the phrase after his inaugural oath, and it was contemporaneously documented as used in the oaths of many presidents since Abraham Lincoln.
The last time Barack Obama was sworn in as President, a group of atheists sued to prevent the Chief Justice John Roberts from prompting the President with the words “So help me God.” The plaintiffs conceded that the President himself has a First Amendment right to use the phrase, but they argued that it is unconstitutional for the Chief Justice to prompt the President with those words. See Newdow v. Roberts, 603 F.3d 1002 (dismissed for mootness and lack of standing).
A Reminder to Us All
To those who learn and follow God’s will, manifested in the Torah, it is encouraging to see the leader of one of the most powerful nations invoke His name when he takes the oath of office. But it also must remind us that as much as it appears that the President alone is making important executive decisions, it is really the Almighty who is in control. Continue reading
New York became the first state to take legislative action in response to last month’s tragedy at Sandy Hook Elementary School when it enacted reforms to its gun laws this week. Among the provisions of the new law are tighter restrictions on “assault weapons” and “high capacity magazines.”
However, the law addresses not only firearms themselves, but also the people that use them. For instance, it will require background checks for buyers of ammunition. Additionally, in one of its more controversial parts, the new law requires mental health providers to report patients to criminal justice authorities when the mental health professionals believe that the patients are likely to engage in conduct that would result in serious harm to themselves or others. The authorities can then determine whether or not to revoke the patient’s gun license.
New York’s new law is designed to prevent the horrible results of gun violence, but it also highlights the difficulty in identifying and defining its underlying causes. Recognizing that America is currently struggling to find an answer to an increase in gun violence, President Obama revealed this week his strategies for reducing gun violence and announced that he would immediately sign twenty-three executive orders concerning firearms, including a directive to the Centers for Disease Control to research the causes and prevention of gun violence.
There are numerous opinions as to the causes of gun violence. Continue reading
Last week a federal judge ruled that the New York City Department of Health can require mohelim to obtain parental consent before they perform circumcision involving the ritual of metzitzah b’peh (MBP). (Click here for the text of the decision in Central Rabbinical Congress v. NYC Dept. of Health)
MBP, as defined by the Court in this case, is a “practice among some observant Jews in which a ritual circumciser, or mohel,” places his mouth on the place of circumcision in order to draw blood away from the wound. (The halachic background behind MBP will be discussed briefly below, and at greater length in an upcoming post.)
The regulation at issue is § 181.21 of the New York City Health Code, which: defines “direct oral suction” as it relates to circumcision; requires that written parental consent be obtained before “direct oral suction” is performed during circumcision; and requires the person performing the circumcision to keep the consent form for at least one year.
Before the regulation took effect, several Jewish advocacy groups, along with some mohelim, sued the NYC Dept. of Health to prevent its enforcement. However, they were dealt a big setback last week when U.S. District Court Judge Naomi Reice Buchwald denied their request for a preliminary injunction. Continue reading
From the Pittsburgh Post-Gazette:
An Orthodox rabbi from Pittsburgh has filed a federal lawsuit against the Pennsylvania Board of Funeral Directors and two other state officials, saying that the board is violating Jews’ religious freedom by insisting that licensed funeral directors oversee all burials.
The suit from Rabbi Daniel Wasserman of Shaare Torah Synagogue in Squirrel Hill accuses the state Board of Funeral Directors of intimidating rabbis, synagogues, grieving Jewish families and funeral homes that cooperate with rabbis, in a quest for profit. It was filed in U.S. District Court for the Middle District of Pennsylvania, based in Scranton.
Beyond what he does for his own synagogue, Rabbi Wasserman leads the group that organizes ritual mourning and burial for the wider Orthodox Jewish community in Pittsburgh.
The lawsuit is “to preserve and restore the historical right of clergy to conduct religious burial and funeral rites free from interference and harassment by the Commonwealth of Pennsylvania and professional, secular funeral directors who serve no health or safety interest,” according to the lawsuit, which cites state and federal constitutional guarantees of freedom of religion.
“Plaintiff — unlike some clergy from other religions — is now being threatened with civil action and criminal prosecution, including stiff fines and even imprisonment, for conducting religious funerals in place of licensed funeral directors who, under color of state law, interfere in purely religious observances for no other justification than personal profit,” according to the lawsuit.
The rabbis comply with all state health rules for treatment of dead bodies, and the State Department of Health, not the State Board of Funeral Directors, is responsible for seeing that those rules are followed, according to the lawsuit.
Continue Reading –>
By Dr. Wallace Greene
On April 16, Greenleaf Compassion Center in Montclair was issued a permit by the New Jersey Department of Health and Senior Services to begin growing medicinal marijuana. A permit to dispense medicinal marijuana will be issued to Greenleaf when its dispensary is operational. That is expected to occur in about six months.
A physician’s task is to heal and to do no harm. Jewish medical oaths as well as the Hippocratic oath constantly emphasize the palliative aspect of medical care. Jewish law has codified the role of the physician, and prescribes strict standards regarding the treatment of patients.
It has been documented that marijuana is an analgesic for sufferers of nausea related to chemotherapy, appetite, and weight loss related to AIDS, migraine headaches, Alzheimer’s, muscle spasms, fibromyalgia, arthritic pain, glaucoma, and other conditions. If marijuana is superior to other drugs, and concerns raised about its continued usage, we need to analyze a number of pertinent halachic issues. We need to determine whether it is permissible to prescribe marijuana according to Jewish law.
We are not dealing with legal issues from the perspective of secular law. Other states have legalized medical marijuana and New Jersey is only months away from doing so. Our discussion is framed by strictly halachic considerations.
Even where marijuana has been legalized, do its dangerous side effects militate against its use? Does compassion for the patient override concerns of possible long-term harm? Under which circumstances may a patient put himself into a potentially harmful situation? If the non-medicinal properties of marijuana promote a feeling of well-being so that a patient feels relief, does that constitute a valid reason to prescribe it? Continue reading
Last week on April 18th, while Israel began its observance of Yom HaShoah (Holocaust Remembrance Day), a New Jersey court addressed anti-Semitic discrimination in the workplace in the case of Cowher v. Carson & Roberts. The law at issue, New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-1, et seq., was originally enacted in 1945––the year that saw the end of the Holocaust––to “eradicate the cancer of discrimination.”(1) This case of harassment, though, is somewhat unique.
Myron Cowher was a truck driver in New Jersey. For over a year, two of Cowher’s supervisors continually uttered slurs about Jews, directed at him. After he stopped working at the company due to disability, Cowher sued under New Jersey’s Law Against Discrimination (LAD).
The problem: Myron Cowher is not Jewish. Continue reading
The Beth Din of America has published the first issue of its new journal, in collaboration with the Rabbi Norman Lamm Yadin Yadin Kollel at the Rabbi Isaac Elchanan Theological Seminary (RIETS) of Yeshiva University. The new Journal of the Beth Din of America contains articles on Jewish jurisprudence and beit din practice, with a particular emphasis on the policies and practices of the Beth Din of America. Each issue of the Journal includes anonymized versions of actual din torah (arbitration) decisions issued by the Beth Din of America.
The first issue of the Journal includes the following articles:
- The Prenuptial Agreement: Recent Developments, by Rabbi Mordechai Willig
- Jewish Law, Civil Procedure: A Comparative Study, by Rabbi Yona Reiss
- The Prohibition Against Going to Secular Courts, by Rabbi Yaacov Feit
- Understanding Rights in Context: Freedom of Contract or Freedom From Contract?, by Rabbi Michael J. Broyde and Steven S. Weiner
- Recovering the Costs of Litigation in Beit Din, by Rabbi Shlomo Weissman
The issue also contains Beth Din decisions regarding defective merchandise and hasagas gevul (unfair business competition).
To read the Journal online, click here. For more information on the Journal click here.
The previous post described the dispute between Barbara Cadranel and the California Condominium Association of Stratford, Connecticut, regarding Ms. Cadranel’s mezuzah. Thankfully, the parties resolved the matter, and Ms. Cadranel will be allowed to keep her mezuzah on the doorpost outside of her apartment.
Today, the attorney for the California Condo Association sent the following letter to the Stratford Star:
To the Editor:
As attorney for the California Condominium Association of Stratford, I am pleased to advise that we have resolved the issue of the mezuzah on the door post of the unit owned by Barbara Cadranel. Continue reading
It seems to a be recurring set of events in condominiums: A Jewish resident affixes a small, unobtrusive mezuzah to her doorpost. Not long after, she receives a notice from the condo association explaining that no personal objects may be placed in “common areas.” The notice demands that the resident take down the religious object and threatens to impose a fine if she does not. One famous example of such a situation is the Bloch v. Frischholz case in Illinois. Although a few states have enacted laws specifically protecting condo residents’ rights to put up mezuzah’s (see this earlier post), the laws in many other states are not as clear.
The most recent case involves Barbara Cadranel, who currently resides in the California Condominiums in Stratford, Connecticut. After receiving a mezuzah as a gift, she placed it on the doorpost outside of her apartment. Soon after, on several occasions, she would return home to find the mezuzah on the ground. She then received a letter from the condo association demanding that she remove the object or face a fine of $50 per day. Continue reading
From the Southampton Press:
An attorney representing the East End Eruv Association warned Quogue Village Board members Monday that a denial of its application to create a religious boundary within the municipality would violate the First Amendment rights of Orthodox Jews.
During the hour-long public hearing, attorney Robert Sugarman of the Manhattan firm of Weil, Gotshal and Manges told the estimated 50 people in attendance that there is legal precedence that would support the village’s approval of the boundary, called an eruv. Mr. Sugarman’s law firm is the same one that is representing the East End Eruv Association (EEEA) in the federal civil rights lawsuit that it previously filed against Quogue and Westhampton Beach villages and Southampton Town over the proposed religious boundary.
Specifically, Mr. Sugarman said Monday that the group’s application, which was filed with the village two months ago, notes that the courts have ruled that attaching boundary markers, known as “lechis,” to utility poles in the village could be done without violating the Establishment Clause of the U.S. Constitution. The clause states that governments cannot give preference to one religion over another.
He added that, if the village were to reject the application, board members would be violating the rights of Orthodox Jews to practice their religion, a move that would violate the Constitution’s religious protections. Continue Reading –>
Related Post: Lawsuit Over Eruv in the Hamptons and American Legal Precedent