Duvid Berry

The United States Supreme Court (SCOTUS) has released a number of watershed decisions in the last week. Some of the rulings will have a direct impact on the community of religious Jews living in the United States. Others have less specific relevance, but profoundly influence the moral and social direction of the country—an issue of great importance to our community.

Supreme Court Defends Religious Schools

A major victory for private religious schools, their students, and parents was scored when the Supreme Court ended years of unequal treatment by several states, last week.

In Carson v. Makin, the court said that the state of Maine could not exclude schools that have religious instruction from state funding on account of their religious nature. The ruling potentially affects state funding across the country that has been prioritized or kept exclusively for nonsectarian public schools, on claims that the First Amendment prevents government from funding religion.

The case surrounded a Maine law that mandates the state to pay tuition to private schools for students it could not service with public schools. The state, with the blessing of lower courts, had kept the tuition funding designated by the law from any school that teaches religious subjects, arguing that the United States Constitution prohibits government aid to religious institutions.

On the contrary, SCOTUS ruled, by withholding the funding from the schools, Maine was violating the First Amendment’s Free Exercise Clause, which it says prohibits states from discriminating not only against schools that identify as religious, but also those that actively teach religious subjects.

Writing for the 6–3 majority, moderate conservative Chief Justice John Roberts argued, “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”

Agudath Israel of America, along with several other Orthodox Jewish groups, had fought hard for the ruling, which promises to mean more dollars for frum schools. The Agudah had submitted an amicus brief in the case. “Other states that have ‘no aid’ provisions in their state constitutions and law can effectively feel free to now enact programs that encourage or provide assistance to religious schools on an equal basis with other nonpublic schools,” said Rabbi Abba Cohen, Agudath Israel’s vice president for government affairs.

Will the decision immediately impact any laws already on the books? In an interview with Lakewood News Network, Rabbi Yosef Hertz, director of Federal Education Affairs for the Agudah, expressed hope for new eligibility of yeshivos and Bais Yaakovs for Universal Pre-Kindergarten (UPK) funds in New York, and Naples Act funding in New Jersey.

The Naples Act provides New Jersey state funding to send children with disabilities to private schools, under certain circumstances. UPK is a billion-dollar program that pays for free schooling for three- and four-year-old children in New York. Under their present regulatory language, both are limited to nonreligious schools. The Agudah is reviewing these, and other applicable programs, to determine whether the Supreme Court decision broadens eligibility to private, religious schools.

Supreme Court Overturns Roe v. Wade

In a ruling that had been leaked months in advance, the Supreme Court (SCOTUS) overturned a 50-year-old piece of constitutional jurisprudence that declared abortion to be a constitutional right. The new ruling does not declare the procedure legal or otherwise; it merely removes any constitutional impediments to restrictions that might be enacted by legislators.

No federal law on the subject has been passed, leaving states free to decide the matter as they wish. Over 20 Republican-led states currently have bans in place, and as many as 26 are expected to have them in the wake of the decision.

Roe v. Wade is the name of a 1973 case in which SCOTUS ruled that bans on abortion are unconstitutional because they violate constitutionally protected privacy rights. Now, the court has said that that ruling was a mistake—a wild stretch of the intent of the Constitution, and an egregious example of SCOTUS of the time misusing its power of constitutional review to effectively legislate its moral policy. The court today did not comment or rule on the morality or legality of the procedure, only on whether or not the Constitution had anything to say on the matter. By a majority of 6–3, the court declared that it did not.

The majority opinion states that Roe “must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” The opinion goes on to call the original 1973 ruling “egregiously wrong from the start,” with “exceptionally weak” reasoning and “damaging consequences.”

Notably, negative reaction to the ruling said little about its merits from a constitutional perspective—which is the limits of the court’s jurisdiction—and focused instead on the political fallout. Not much legal resistance was mounted by the dissenting justices in their own written opinion, who pretty much conceded that the legal basis of the 1973 decision was weak.

Agudath Israel of America issued a statement welcoming the decision. “Agudath Israel has long been on record as opposing Roe v. Wade,” the statement reads. “We do not seek to impose our religious beliefs on the broader American society. We are of the view, however, that society, through its laws, should promote a social ethic that affirms the supreme value of life. Allowing abortion on demand, in contrast, promotes a social ethic that devalues life. We pray that today’s ruling will inspire all Americans to appreciate… and to embrace a culture that celebrates life.”

Protests broke out across the nation after the decision was published on Friday, and condemnation from liberal lawmakers was quick to follow. Several Democrats pushed for “court-packing,” or a move by Congress to expand the number of justices that sit on the Supreme Court, to water down the conservative “supermajority” of 6–3, including three justices appointed by former President Donald Trump. The number of justices on the court has varied in the past.

In a statement from the White House, the Biden Administration reaffirmed its opposition to court packing, and said the impact of the court’s decision could only be changed by the passage of a federal law. Such a law has been proposed, but will not get through the divided Senate unless it votes to repeal the filibuster rule—another step Democrats are loath to do.

Some of the protests over the weekend turned violent. In Portland, Oregon, a large group of rioters smashed windows and vandalized buildings. The group also graffitied messages targeting the US Supreme Court. “Death to SCOTUS,” one black spray-painted message said.

Democratic Massachusetts Sen. Elizabeth Warren said the Supreme Court “torched” its legitimacy after voting to overturn Roe V. Wade. “This Court has lost legitimacy. They have burned whatever legitimacy they may still have had after their gun decision, after their voting decision, after their union decision,” Warren said.

US Senators Joe Manchin (D-West Virginia) and Susan Collins (R-Maine) complained that Justices Gorsuch and Kavanaugh had misled them during their confirmation hearings, when asked about the subject, leading them to vote to confirm under false pretenses. That statement prompted Democrats like Alexandria Ocasio-Cortez (D-NY) to call for the impeachment of justices who lied under oath.

Supreme Court Defends Religious Expression

The Supreme Court has ruled in favor of a school teacher who lost his job over his recital of a prayer.

The issue heard by the court concerned whether a public-school employee praying in view of students amounted to an imposition of his beliefs on students, and whether it was a violation of the constitutional principle of separation of church and state.

The case surrounded high school football coach Joe Kennedy, who prayed at the 50-yard line after every game he coached. Kennedy was told by his school district to stop the practice because it made atheistic students uncomfortable, and was eventually fired when he refused to comply.

The Supreme Court ruled Monday, in a 6-3 decision, that firing Kennedy violated his rights to free exercise of religion and free speech. It said the prayers did not coerce others to join.

“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s,” the majority opinion wrote. “Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor.”

Justice Neil Gorsuch wrote, “Not just the Constitution, but the best of our traditions” call for “mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

The Court’s ruling stood strongly in support of public prayer, noting that it is protected by both the Free Speech and Free Exercise Clauses. “That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent,” Gorsuch wrote.

Supreme Court Expands Gun Rights

As Congress and states were debating new gun-control legislation, SCOTUS was striking down old ones.

In what is being called the biggest expansion of gun rights by the Supreme Court in US history, the court ruled that the Constitution protects an individual’s right to carry a weapon without need to justify it to government. The court declared that a law that banned concealed carry of firearms without demonstrable need was unconstitutional.

The Constitution protects “an individual’s right to carry a handgun for self-defense outside the home,” Justice Clarence Thomas wrote for the majority. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

“Today, unfortunately, many Americans have good reason to fear they will be victimized if they are unable to protect themselves,” Justice Samuel Alito wrote. The Second Amendment, he said, “guarantees their right to do so.”

President Joe Biden and other Democratic lawmakers expressed consternation over the decision, which comes as the country agonizes over the way forward after tragic shootings in Buffalo and Uvalde. Biden said in a statement that he was “deeply disappointed” by the Supreme Court ruling. It “contradicts both common sense and the Constitution, and should deeply trouble us all,” he said.

About one-quarter of the US population lives in states expected to be affected by the ruling, which struck down a New York gun law in place since 1913. California, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island all have laws similar to New York’s. Those laws are expected to be quickly challenged.

Again, the dissenting opinion focused not on the legal issues at play, but on the merits of the policy—an area not traditionally within the jurisdiction of the court. Writing for the liberal faction of the court, Justice Stephen Breyer focused on the toll taken by gun violence. He wrote that the ruling would “severely” burden states’ efforts to pass laws “that limit, in various ways, who may purchase, carry, or use firearms of different kinds.”

States with concealed carry bans, which include New Jersey, immediately began researching their options to limit guns despite the court’s decision. They can still require people to get a license to carry a gun, and condition that license on many restrictive terms, such as fingerprinting, background checks, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.

In response to the ruling, New Jersey Governor Phil Murphy said his administration is closely reviewing its options to respond to the Supreme Court’s decision, and will “work to ensure that our gun safety laws are as strong as possible, while remaining consistent with this tragic ruling.” One option under discussion is a proximity ban- making it illegal to carry a gun within a certain distance of several types of institutions. These bans can be made so extensive as to effectively make it illegal to carry a gun anywhere in the state.

New Jersey legislators moved quickly on a package of gun-restriction bills that had stagnated in Trenton. The measures that cleared include proposals to mandate firearm training for a gun permit in New Jersey, a ban on .50 caliber rifles, requirements for micro-stamping technology, a rule forcing new residents moving to New Jersey from other states to register their firearms, regulations on handgun ammunition, and a proposition to make it easier to sue gun manufacturers and dealers over gun crimes.

The legislature also composed bills on new ideas, such as limits on body armor and a crackdown on untraceable “ghost” guns. Two of the bills most strongly pushed by Governor Phil Murphy were rejected by the senate. These include one that would raise the age at which one may legally buy shotguns and rifles in the state from 18 to 21, and another that would revamp how guns must be stored.

New Jersey currently has the second-strongest gun laws in the US, after California, according to rankings by the Gifford Law Center. In response to the Supreme Court ruling, Acting Attorney General Matthew J. Platkin issued a directive reaffirming that all other requirements for carrying firearms in New Jersey—other than concealed carry need—remain in force.

“I want to make it perfectly clear that carrying a handgun without a permit is still illegal in New Jersey, and applicants must satisfy all other statutory and regulatory requirements—including a thorough background check—before obtaining a permit to carry here,” said Platkin. “New Jersey is leading the way by taking commonsense action to protect our residents and law enforcement officers from the daily threat of gun violence—and the Supreme Court decision will not change that.”

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“Today, unfortunately, many Americans have good reason to fear they will be victimized if they are unable to protect themselves. The Second Amendment guarantees their right to do so.” –Justice Samuel Alito

States with concealed carry bans, which include New Jersey, immediately began researching their options to limit guns despite the court’s decision