Call it the Glatt Kosher Constitution. One of the most startling features of the United States Supreme Court case on Obamacare is that the whole edifice could be brought down over the question of kosher butchers. Even more amazing is the fact that if it happens, it wouldn’t be the first time such a fate was met by a historic piece of liberal legislation.
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The possibility swerves into view on page 78 of the official transcript of the Supreme Court hearing in the cases of Hobby Lobby and Conestoga Wood Specialties. They are owned and run by families of religious Christians, who object to the Obamacare mandate that they carry for their employees insurance covering certain kinds of birth control prohibited by their religious laws.
The government is taking the position that their companies — being for-profit, commercial enterprises — mayn’t seek shelter under the First Amendment for religious free exercise. This line is echoed by the liberal press, most vociferously the New York Times. “If there is a Supreme Court decision in favor of these businesses, the ripple effect could be enormous,” it editorialized the other day.
Indeed it could, though not necessarily in the way Times fears. Feature the exchange that took place at the Supreme Court, when Justice Samuel Alito asked about the implications “of saying that no for-profit corporation can raise any sort of free exercise claim.” He then raised the question of Denmark’s recent prohibition of strict adherence to kosher and halal slaughtering.
“Now,” he said, “suppose Congress enacted something like that here. What would the — what would a corporation that is a kosher or halal slaughterhouse do? They would simply — they would have no recourse whatsoever. They couldn’t even get a day in court.” He said they couldn’t raise a claim under the Religious Freedom Restoration Act. “They couldn’t raise a first Amendment claim.”
It’s unclear from the transcript whether the Solicitor General, Donald Verrilli, was prepared. He said it was “not sure” they couldn’t raise claim under the First Amendment, which prohibits the Congress from making any law prohibiting the free exercise of religion. If you had a law that “targeted a specific religions practice,” he said, it was not the government’s position that they couldn’t make a free exercise claim.
“Why is that —?” Alito started to ask. But before he could finish Justice Anthony Kennedy, the famed “swing vote” among the nine justices, jumped in to back up Alito, saying the “hypothetical that was the impetus for this was humane treatment of animals. There was no animus to religion at all.”
“Exactly,” Alito said.
General Verrilli floundered on until one of the great principled liberals on the court, Stephen Breyer, astonished the room by swinging in behind Alito. “The point that Justice Alito was making,” he said, “is that —take five Jewish or Muslim butchers and what you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the Freedom of Exercise clause that you’d otherwise have.”
He pressed the point. “Now, looked at that way, I don’t think it matters whether they call themselves a corporation or whether they call themselves individuals. I mean, I think that’s the question you’re being asked, and I need to know what your response is.” That phrase “I need to know,” well, let’s just say that one doesn’t often hear a justice talking that way to the American government.
It’s hard to see how either Justices Alito, Kennedy, or Breyer could be salved by General Verrilli’s response. “Once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for-profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial space.”
The result is that one scholar of constitutional law, Betsy McCaughey, is now predicting a six-to-three vote overturning the Obamacare birth-control mandate. It would be an astounding result, one that would rock the Obama administration. But it would not be the first time that the question of kosher butchering confounded the United States government.
The first time was one of the most famous cases in all of American history — Schechter Poultry Corp. v. United States. It was brought by a family of kosher poulterers in Brooklyn. It wasn’t a First Amendment case. The Schechter brothers had been charged with crimes under the National Industrial Recovery Act, the centerpiece of the New Deal. The government, to over simplify, wanted them to streamline their business. The court struck down the law nine to zero.
Seth Lipsky is editor of The New York Sun www.nysun.com. He was a foreign editor and a member of the editorial board of The Wall Street Journal, founding editor of The Forward and editor from 1990 to 2000.