US Supreme Court Justice Alito plays Talmudic scholar
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US Supreme Court Justice Alito plays Talmudic scholar

Conservative judge dissents to decision not to review case of Jewish prisoner claiming religious discrimination

Renee Ghert-Zand is a reporter and feature writer for The Times of Israel.

Supreme Court Justice Samuel Alito gestures while speaking at Georgetown University Law Center's third annual Dean's Lecture to the Graduation Class, in Washington, Tuesday, February 23, 2016. (AP Photo/Cliff Owen)
Supreme Court Justice Samuel Alito gestures while speaking at Georgetown University Law Center's third annual Dean's Lecture to the Graduation Class, in Washington, Tuesday, February 23, 2016. (AP Photo/Cliff Owen)

It turns out you don’t need to be a rabbi to answer the question of when a is minyan required, and when is it not.

The questionable need of a Jewish prayer quorum (traditionally consisting of 10 men) was central to a case submitted to, but declined to be reviewed by The US Supreme Court on February 29.

A single dissenter to the decision by SCOTUS not to hear the case was Associate Justice Samuel Alito, who argued that it should have been heard on the grounds that it discriminated against the Jewish plaintiff, in violation of the Free Exercise Clause contained within the First Amendment to the Constitution of the United States.

Alito, nominated to the Supreme Court by President George W. Bush, is known as a conservative jurist.

The case, Ben-Levi v. Brown, was brought by Israel Ben-Levi (aka Danny L. Loren), a North Carolina inmate serving a life sentence for a 1980 rape. Ben-Levi filed a petition challenging a prison policy prohibiting him and the very few other Jewish inmates he could muster from praying and studying Torah together.

The North Carolina Department of Public Safety imposes stringent restrictions on Jewish group meetings, permitting them only if they are attended by a minyan, or led by a rabbi

The North Carolina Department of Public Safety (NCDPS) imposes stringent restrictions on Jewish group meetings, permitting them only if they are attended by a minyan, or led by a rabbi.

The United States District Court for the Eastern District of North Carolina ruled against Ben-Levi, claiming that his free exercise rights were not violated because the prison was enforcing policy, and because Ben-Levi could pray or study on his own in his cell. The court also pointed out that the policy was in place to maintain security, as prison religious gatherings have been used as a cover for gang activity.

Ben-Levi appealed to the Fourth Circuit court, which upheld the ruling of the lower court.

Illustrative photo of a young man reading from a Torah scroll (Yonatan Sindel/Flash90)
Illustrative photo of a young man reading from a Torah scroll (Yonatan Sindel/Flash90)

Justice Alito wrote in his dissent that this ruling amounted to discrimination against Jewish inmates under the Free Exercise Clause, and that this case, therefore, merited consideration by the Supreme Court.

Alito explained his view in detail, with it basically boiling down to his saying that it was not up to the government to determine how a person can or should practice their religion. In this particular case, the definition of a minyan — and if or when one is needed — is none of the government’s business.

“The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents. This Court has consistently refused to ‘question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants,’” Alito wrote.

“Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim,” he continued.

‘The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents’

Alito argued that case law makes clear that it is not the right of the prison warden to identify or determine religious requirements — regardless of the prisoner’s level of religious knowledge.

“…The courts below should have considered whether the [prison system] policy imposed a substantial burden on Ben-Levi’s ability to exercise his religious beliefs, as he understands them. Ben-Levi believes that relaxing the minyan requirement promotes his faith more than sacrificing group Torah study altogether. By ignoring Ben-Levi’s actual beliefs and focusing solely on [the prison system]’s understanding of Judaism, [the warden] and the courts below considered the wrong question,” Alito wrote.

Alito also pointed out that prisoners of other religions have been allowed to congregate in groups smaller than 10.

The dismissal is obviously a disappointment to Ben-Levi, but UCLA law professor Eugene Volokh wrote in The Washington Post that he shouldn’t take it too personally. According to Volokh, SCOTUS gets 8,000 petitions per year, but only agrees to hear 80 of them.

“The court’s refusal to grant review isn’t a judgment on the merits, and it’s also not a precedent…[the Supreme Court] often declines to review cases because it doesn’t think the decisions (right or wrong) merit the justices’ time, or because there are procedural problems with the case,” he explained.

So, it looks like there is still to be no creative counting when it comes to minyans in the North Carolina prisons.

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