I think that's right -- but I'm curious about whether there
would indeed be viable objections to a criminal prosecution, whether for
violation of the injunction or for violation of the underlying statute. (I
assume that prosecution for violation of an injunction is more likely than
prosecution for violation of the statute, but I agree that the legal arguments
would be pretty similar.)
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Sunday, October 9, 2016 8:18 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: "California Court Issues TRO Against Kaporos Practices"
Eugene,
I recall that CA does not follow the collateral bar rule. If that's true, then
can't the Chabad pursue a two track strategy--try to have the injunction
vacated tomorrow, and failing that, just ignore it and defend any ensuing
criminal contempt (or implausible remedial civil contempt proceeding) by
contesting the validity of the injunction?
Mike Masinter
masin...@nova.edu<mailto:masin...@nova.edu>
Sent from my iPhone
On Oct 9, 2016, at 2:44 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
>From
>http://religionclause.blogspot.com/2016/10/california-court-issues-tro-against.html:
As previously reported, in late September an animal rights group filed suit
against Chabad of Irvine in a California federal district court challenging
Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves use
of live chickens which are then slaughtered. (Complaint in United Poultry
Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint
contended that defendants are in violation of California's unfair business
practices law. On Oct. 6, the court on its own motion ordered plaintiff to show
cause why the case should not be dismissed for lack of standing. (Full text of
court order.) On Oct. 7, plaintiff filed a response (full text) arguing in part:
UPC has standing under the Unfair Competition Law based on its
diversion of organizational resources spent addressing Defendants' unlawful
activity and attempting to convince authorities to take action.
The court was apparently convinced. It issued another order (full text
[https://www.scribd.com/document/326967590/Upc-v-Chabad-Tro]) on Oct 7 granting
plaintiff a temporary restraining order barring defendants from killing
chickens or other animals in exchange for a fee or donation in violation of
California Penal Code Sec. 597(a). It set a hearing on whether to order a
preliminary injunction for October 13, the day after Yom Kippur-- effectively
barring the pre-Yom Kippur practice by defendants for this year.
Any thoughts on how to analyze this? Note that sec. 597(a) generally bans
killing animals, but excludes killings allowed under sec. 599c:
No part of this title shall be construed as interfering with any of the laws of
this state known as the "game laws," or any laws for or against the destruction
of certain birds, nor must this title be construed as interfering with the
right to destroy any venomous reptile, or any animal known as dangerous to
life, limb, or property, or to interfere with the right to kill all animals
used for food, or with properly conducted scientific experiments or
investigations performed under the authority of the faculty of a regularly
incorporated medical college or university of this state.
I take it that, if the kaporos chicken were eaten after being slaughtered, the
action would not be illegal, and the injunction would not cover the sale of the
chicken. But according to the plaintiff's papers, it appears that the chickens
are not being eaten -- partly because plaintiffs had earlier argued that the
carcasses were "unsanitary" -- but are instead being "rendered into fertilizer."
I'm inclined to think that these exceptions don't stop the law from being a law
of general applicability for Employment Division v. Smith purposes, because
they aren't focused on singling out religious practice for special burdens.
(They do favor some secular practices over religious practices, but I think
that's OK, as it is for a vast range of other laws that have many secular
exceptions, such as Title VII, copyright law, the duty to testify, and many
more.) But I'd love to hear what others think.
Note also that California courts have not yet decided whether the California
Constitution's religious freedom provision should be interpreted using the
Sherbert/Yoder model -- though, given the current liberal retreat from the old
Justice Brennan/ACLU position, I suspect that California courts will follow
Justice Scalia rather than Justice Brennan on this.
Eugene
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