Bench Memos

Law & the Courts

Why the Jewish Coalition for Religious Liberty Filed an Amicus Brief in the TCCB Case

President Donald Trump prepares to sign the Executive Order on Promoting Free Speech and Religious Liberty during the National Day of Prayer event at the Rose Garden of the White House, Washington D.C., May 4, 2017. (Carlos Barria/Reuters)

Last week, on this blog, Ed Whelan discussed an outrageous discovery order requiring the Texas Catholic Conference of Bishops (“TCCB”),  to deliver copies of their internal deliberations, including those on religious and moral issues to abortion providers. The Jewish Coalition for Religious Liberty filed an amicus brief supporting the right of the TCCB to keep their internal religious deliberations private. We submitted a brief to highlight the unique Jewish historical understanding of the dangers inherent in having private religious thoughts twisted by their adversaries.

From the infamous blood libels, to the slanderous “Protocols of the Elders of Zion,” enemies of the Jewish people have often perverted tenets of the Jewish faith to falsely portray Jews as disloyal, greedy, or evil. Routinely giving such malefactors access to internal and sensitive rabbinic deliberations would make it easier for them to stir up hatred.

Demanding that rabbis produce records of their internal religious deliberations substantially burdens their religious exercise by forcing them to censor their discussions. Frank rabbinic discussions enable Jews to properly apply their faith as new situations and challenges arise. Courts should therefore only grant litigants access to such discussions if they demonstrate a compelling need for the requested information. No such need has been demonstrated in the TCCB case.

Internal religious communications often involve discussions of sensitive matters relating to marriage and divorce, end-of-life decisions, child rearing, financial matters, and interaction with the secular government. If rabbis knew that their internal religious deliberations were ordinarily discoverable, they would not be able to have the wide ranging Talmudic style discussions that understanding Jewish law requires. The risk of an adversary twisting such discussions, or even simply removing them from their proper context, is simply too great.

Rabbinic discourse often involves comparing contemporary issues with historic situations to answer contemporary questions. People intent on demonizing Judaism can generate anti-Semitism by taking discussions of historic examples out of context. For example, while discussing cooperating with secular authorities, rabbis may examine sources written during the Spanish Inquisition that gave Jews permission to lie to a hostile government. Or, while dealing with issues related to paying taxes, rabbis may discuss texts from ancient Rome indicating that Jews could avoid paying taxes collected for the explicit purpose of building temples to the god Jupiter.

Obviously, in context, the Rabbis would highlight the ways in which those circumstances differ from present day America. They would conclude that today’s rule must differ from the rules that governed during the Spanish Inquisition or Ancient Rome. Nevertheless, people who intend to paint Jews as disloyal and dishonest could easily remove that context. They could use the discussion of historic sources to make it seem like modern rabbis are advocating lying to the police and committing tax fraud. Courts should not make life any easier for people with such malign intent.

History is replete with examples of Jewish suffering resulting from the disclosure of sensitive information. In the third century BCE, King Ptolemy the Second ordered 72 Rabbis to translate the Torah into Greek. The Greeks used this translation to harass and embarrass the Jewish community. The memory of this event remains so traumatic that Jews continue to fast in solemn remembrance of this translation until today.

During the Middle Ages, governments ordered Jews to engage in public disputations to defend their faith. These disputations often led to the burning of Jewish books and even violence against Jewish people. More recently, in post-Communist Russia, there have been several petitions presented to the government to investigate, and possibly ban certain Jewish groups and Jewish literature. The petitioners misleadingly excerpted descriptions of Jewish laws and customs to falsely claim that foundational Jewish texts spread religious hatred. Granting such individuals access to raw internal discussion never meant for public consumption would magnify their ability to mispresent Jewish law.

None of this is to say that courts can never order the production of internal religious deliberations. But, the party seeking such materials should bear the burden of demonstrating that they have a compelling need to access the documents, and that there is no other possible source of equivalent information. This level of protection will properly balance the need for maintaining the privacy of such discussions with the occasional need for disclosure. This standard was not applied in the TCCB case.

The Jewish Coalition for Religious Liberty is dedicated to clarifying that religious liberty protections are essential to shield all religious believers — especially members of minority faiths. The false narrative that the debate over religious liberty pits Christians against minorities is harmful to the members of minority faiths who are actually those most in need of such protections. A recent study examining cases brought in the Tenth Circuit found that religious minorities are disproportionately represented in religious-liberty litigation. This makes sense as government officials are likely to not know or understand minority religious practices, and therefore, are more likely to inadvertently burden them.

Religion touches the most controversial issues in modern life including animal rights, circumcision, the role of women in communal life, abortion, and homosexuality. Leaders in every faith need the assurance that the government and the public will only have access to their internal deliberations on these matters in the most compelling of cases.

— Howard Slugh is an attorney practicing in Washington, D.C. Greg Dolin is an Associate Professor of Law at the University of Baltimore School of Law. The brief referenced in this article was written by Greg Dolin, Howard Slugh, and Josh Blackman, a law professor at the South Texas College of Law. All three are members of the Jewish Coalition for Religious Liberty.

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