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LGBT News Social Justice

The Supreme Court Today Accepted the CCAR’s Position: Title VII Bans LGBTQ Workplace Discrimination

Just less than a year ago, the CCAR joined with other faith groups in submitting an amicus curiae brief to the Supreme Court in the case of Bostock v. Clayton County.  At the time, I shared a message about what that brief said.

Today, the Court decided the case.  By a 6-3 vote, it held that Title VII of the Civil Rights Act bans workplace discrimination against LGBTQ individuals.  People who assume that the Court always votes on strict ideological lines will probably be surprised by this outcome and by the fact that Justice Neil Gorsuch, regarded by many as a safe conservative, authored the majority opinion.

One reason we keep producing amicus briefs is that neither this nor any other court can be so easily catalogued.  While judges have ideological tendencies, most of them do attempt to apply the law.  This decision used some very traditional legal reasoning to determine that the Civil Rights Act means what it says: treating a man differently from a woman, or vice versa, violates the law.  If a woman who is attracted to man cannot be fired for that reason, neither can a man who is attracted to men.  End of story.

Our brief dealt with whether there might be occasions where someone might not have to obey this law for religious reasons.  We said any such occasions were few and far between, and certainly didn’t come up here. The Court agreed with our second point.  If and when that question is legitimately presented in the future, we will again be prepared to share our views.

In the meantime, our most basic position was affirmed: federal law protects LGBTQ individuals from discrimination.  For today, that is reason enough to rejoice. 

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News Social Justice

Why the CCAR Fights to Keep Contraception Free

During CCAR Connect in March 2020, many of us learned from Nancy Northup, President and CEO of the Center for Reproductive Rights, about “The Pursuit of Reproductive Rights as Human Rights.” In her keynote presentation, she discussed two important cases going before the Supreme Court this term. One of these could determine the availability of contraception to large numbers of Americans. The CCAR has just joined in a brief amicus curiae to the Court insisting that women continue to have a right to free contraception.

The Affordable Care Act (ACA) mandates that group insurance plans make contraception available at no cost. If a house of worship or a religiously affiliated employer does not want to offer contraception coverage, it can notify the government, and the government will provide that coverage directly to the employees. In the Hobby Lobby case of 2014, the Court extended this opt-out to certain for-profit businesses.

Since then, the federal government has issued regulations that would allow any employer of any type that claims “moral objections” not only to opt out of having its insurance provide free contraceptive coverage but to ensure that the government could no longer provide that free coverage either. In other words, any employer that so desired could keep its employees from getting free contraceptive coverage, despite the ACA’s mandate. The federal Third Circuit Court of Appeals issued a nationwide injunction preventing these regulations from taking effect, and that injunction is before the Supreme Court now in two cases that have been effectively joined as one, Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania.  

Working with the Religious Action Center of Reform Judaism, the CCAR joined a brief filed by several religious organizations, including some Muslim, Catholic, Unitarian Universalist, and a number of Jewish ones. It highlights how there is support for contraception in several religions. Allowing employers to use their own religious beliefs to deprive employees of contraceptive coverage would favor one person’s religious persuasion over others. In the words of the brief, “In a religiously pluralistic society, a woman’s contraception coverage should not depend on the religious or moral beliefs of her employer or university.”

It is appropriate that this brief is being filed during chol hamoeid Pesach, this season of our freedom. Contraceptives serve various health benefits, not all directly related to pregnancy. But perhaps their most important contribution is expressed in this sentence from the brief: “Improved access to contraception enables women to achieve their educational and professional goals, earn more income, and enjoy more stable marriages.”  In other words, limiting the ability of Americans to access medically reliable contraception will interfere with the freedom of women. During Passover of all times, that cannot stand. We in the CCAR have long realized that such limitations are inconsistent with our Jewish values. Today, we said as much to the highest court in the land.


Rabbi Thomas M. Alpert serves Temple Etz Chaim in Franklin, MA.

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News

The Case of the Allegedly Antisemitic Judge

On Thursday, the CCAR joined the Union for Reform Judaism, the Men of Reform Judaism, the American Jewish Committee, and over 100 Jewish lawyers in Texas in filing a brief amicus curiae with the Texas Court of Criminal Appeals supporting the appeal of a death row inmate named Randy Halprin.  Halprin is Jewish, a fact that was well-known at his trial.  He was one of a group of convicts who had escaped the Texas prison system.  He was convicted of capital murder, that is being part of a criminal group where someone committed murder, in this case the killing of a police officer. 

It is unusual for the CCAR, or indeed the other Jewish organizations and individual Jewish lawyers, to file a brief about a particular death penalty case at a mid-level state appellate court in Texas.  It is, after all, the state with by far the highest number of executions in the country, and we just don’t have the resources to file these briefs as a matter of course.  But this is an unusual case. 

The judge who presided over much of Mr. Halprin’s trial, including the death penalty phase, is named Vickers Cunningham.  Credible allegations of a lifetime of vile antisemitic and racist comments and actions by Judge Cunningham have surfaced since Mr. Halprin’s trial and conviction a decade and a half ago.  In 2018, the Dallas Morning News ran a story that laid these out.

A long-time acquaintance of Judge Cunningham told the Texas courts in a sworn statement that the judge regularly attacked Jews and people of color using foul epithets, including referring to Mr. Halprin as the “goddamn kike” and the “f…..n’ Jew.”  A campaign aide in Judge Cunningham’s 2006 race for Dallas District Attorney provided the courts a sworn statement that she heard him call Jews “dirty” (and slur people of color as well), and that he regularly referred to Mr. Halprin just as “the Jew.”  Mr. Halprin suggests that these attitudes influenced several rulings against him by Judge Cunningham.

The CCAR and others who filed this brief are not taking a position on whether Mr. Halprin committed crimes.  As the brief says, “[A]t this moment, those issues are irrelevant, because issues of guilt or innocence follow a fair trial; they do not precede it.  And if Judge Cunningham is the bigot described in [Mr. Halprin’s] application, a fair trial has not yet happened.”  The brief asks for a stay in Mr. Halprin’s execution and a full evidentiary hearing on whether Judge Cunningham was indeed biased against Jews.  If he was, a new trial should be warranted.

In the Torah reading for the week when the brief was filed, the Israelite people are instructed to appoint judges.  As part of that, they are told lo takir panim, “you shall show no partiality.”  Every court system deserving of its name has required the same of its judicial officers.  In this case, the Conference asserts that principle remains paramount today.


Rabbi Thomas M. Alpert serves Temple Etz Chaim in Franklin, MA.

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LGBT Social Justice

We Just Told the Supreme Court: The CCAR Opposes Employment Discrimination against LGBTQ Individuals

Among its various activities, the CCAR signs on to various briefs filed amicus curiae.  The term means “friend of the court.”  Amicus briefs are designed to inform a court about relevant facts and law that the parties to the case might not have had reason to focus on.  The CCAR signs on to several of these briefs a year, both in the U.S. Supreme Court and in state and lower federal courts.  I serve as the amicus coordinator for the Conference.

In the Supreme Court term that just ended, we signed onto a brief in Commerce Dept. v. New York that opposed the effort of the Administration to add a citizenship question to the 2020 census.  The Court agreed that this effort was illegal.  Of course, not all our briefs convince the courts, but they all get our opinions before them.

The start of the coming Supreme Court term, around Rosh Hashanah, will hear oral arguments on three consolidated cases that deal with employment discrimination against LGBTQ people.  The issue that all of them present is whether Title VII of the Civil Rights Act of 1964 protects these employees because such treatment constitutes prohibited sex discrimination. 

In Altitude Express, Inc. v. Zarda, a skydiving instructor was fired because of his sexual orientation.  In R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, a funeral director was fired after she informed her employer that she was transgender.  The employer had insisted that she present to the public according to her gender at birth.  In Bostock v. Clayton County, a county child welfare services coordinator was terminated when his employer learned that he was gay.  Two of the federal appellate courts hearing these cases determined that these firings were prohbited by Title VII; the other held that Title VII didn’t bar the termination.  The Supreme Court will resolve this dispute.

I shared the story of each case in order to remind us that court decisions are not just abstract intellectual matters.  How the Supreme Court rules will have a major impact in the lives of real people.

We signed onto a brief arguing that LGBTQ discrimination is indeed illegal under Title VII.  The URJ, WRJ, and MRJ joined us in this.  But this was a very special sort of brief, the kind that an amicus brief should be.  It was written specifically for religious organizations and clergy.  Denise Eger let members of the Conference who are on the Facebook page know about this brief and gave them an opportunity to sign on as individuals.

The brief explains why several religions, including ours, views equal treatment of LGBTQ individuals as a religious imperative.  It refers to actions and positions taken by these religious organizations, including the CCAR and the URJ.  It counters arguments made by other faith groups that their religious beliefs in effect require them to discriminate against LGBTQ people.  It responds that allowing such discrimination in effect favors those religions at the expense of ours and of others who share our views.

We cannot know how the Court will rule.  We can know that we have told it that allowing some to discriminate against LGBTQ people on religious grounds will also constitute discrimination against our way of practicing our religion.


Rabbi Thomas Alpert serves Temple Etz Chaim in Franklin, MA.

Read more about the brief on the CCAR’s website.

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Chanukah Rabbis Organizing Rabbis Social Justice

We All Count: Chanukah, Alabama, and Inequality

This blog is the fifth in a series from Rabbis Organizing Rabbis connecting the period of the Omer to the issue of race and class structural inequality.  Rabbis Organizing Rabbis is a joint project of the CCAR’s Peace & Justice Committee, the URJ’s Just Congregations, and the Religious Action Center. 

There is a meditation in Mishkan T’fillah that was carried over from Gates of Prayer: “Prayer invites God’s presence to suffuse our spirits, God’s will to prevail in our lives.  Prayer may not bring water to parched fields, nor mend a broken bridge, nor rebuild a ruined city.  But prayer can water an arid soul, mend a broken heart, rebuild a weakened will.”  This meditation was penned by Rabbi Abraham Joshua Heschel, who was personally invited by Dr. Martin Luther King to help lead the march from Selma to Montgomery, Alabama in March 1965.  When he returned from that march, Rabbi Heschel wrote, “I felt as if my legs were praying.”

Rabbi Heschel and Dr. King are long gone, but I felt their presence and those of everyone who marched from Selma half a century ago: those who marched and were beaten and clubbed in “Bloody Sunday,” those who tried to march and stopped to pray, and those who finally succeeded in marching to Montgomery, where they heard Dr. King tell us that “the arc of the moral universe is long, but it bends toward justice.”  I felt their presence and even heard from some of them when I traveled to Selma in March for the commemoration of the marches.

Rabbi Fred Guttman of North Carolina organized a Jewish contingent to participate in the event.  We met at Temple Mishkan Israel, the beautiful (Reform) synagogue of Selma’s now tiny Jewish community.  In addition to Jews, those present included members of the African American community, and among them was a contingent from the North Carolina NAACP.  I made friends with a future divinity student in that group.  We were challenged by Dr. William Barber, President of the North Carolina NAACP, who reminded us that “moral dissent can never take a vacation.”

We heard from David Goodman, whose brother Andrew was lynched along with Michael Schwerner and James Chaney in Mississippi during the Movement.  We heard from Dr. Susannah Heschel, daughter of Rabbi Heschel, about the challenges her father set forth for us.  We joined in as Peter Yarrow sang “Blowin’ in the Wind,” just as he had done in Selma 50 years ago.  And we heard Clarence Young, one of Dr. King’s chief advisors, tell us that “the true story of Selma is the story of the participation of the Jewish people and Jewish leadership.

And we saw a beautiful African American woman, short in stature but proud in bearing, who faced the weapons and the hatred 50 years ago.

Then we left, and with tens of thousands of others, crossed the Edmund Pettus Bridge.  It was celebratory, and it was emotional, but it was much more than that.

Our gathering in that synagogue was a form of prayer.  It served to rebuild a weakened will.  Much has gone wrong in our country when it comes to creating a unified society.  The Supreme Court has gutted the very voting rights protections that the Selma march was designed to guarantee.  Since then, states have engaged in campaigns of voter suppression.  Economic inequality continues to grow, and racist actions, some trivial, many not, continue to show up on our television and computer screens.  It is tempting to throw up our hands and let the world go on its way.

But Selma is always there to remind us that despair is not the way.  Dr. King and Rabbi Heschel first met in 1963 at a conference on religion and race.  In his keynote address, Rabbi Heschel said,

“At the first conference on religion and race, the main participants were Pharaoh and Moses.  Moses’s words were, ‘Thus says the Lord, the God of Israel, let My people go….’  The outcome of that summit meeting has not come to an end.  Pharaoh is not ready to capitulate.  The exodus began, but it is far from having been completed.”

As we move away from Passover, we must recall that we are the descendants of those who challenged Pharaoh.  We are the people who crossed the sea to freedom.  We have to keep crossing it, and bring all those in search of freedom with us.

And this brings me from Passover to Chanukah.  The word means “dedication,” and the holiday celebrates our rededicating the Temple after the forces of oppression had vandalized it.  What I learned in Selma is that we have to rededicate ourselves every day to making this world – God’s temple – into a holy place.  We need to repair the damage that has been done.  That is the true meaning of tikkun olam.  And that is the meaning of Selma.

———

Rabbis Organizing Rabbis is project of the Reform Movement’s social justice initiatives: the CCAR’s Committee on Peace, Justice and Civil Liberties, the Religious Action Center, and Just Congregations.

Rabbi Tom Alpert serves Temple Etz Chaim.

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News Rabbis Reform Judaism Social Justice

Praying for Rain: Marriage Equality in North Carolina

As we move toward Sh’mini Atzeret/Simchat Torah, we begin to pray for rain.  We change from morid hatal to mashiv haruach umorid hagashem.  So this is a good time to recall that other outpouring called for by the prophet Amos: v’yigal kamayim mishpat utz’dakah k’nachal eitan, let justice roll down like waters and righteousness like a mighty stream.

Just before Shabbat, justice and righteousness began to roll down in North Carolina.  Earlier this year, the CCAR and several of our North Carolina colleagues joined in a litigation to challenge Amendment One, the prohibition on same sex marriage in the state.  Several other colleagues wanted to join but could not do so for technical legal reasons.  The challenge had two elements.  First, it claimed that the Fourteenth Amendment to the United States Constitution barred a state law that prohibited same sex couples from marrying.  Second, it claimed that, even if that ban was otherwise constitutional, it ran afoul of the First Amendment, in that it threatened clergy who performed religious-only same sex marriages with civil penalties.

Last week, the Supreme Court declined to hear a case from the Fourth Circuit Court of Appeals that overturned Virginia’s ban on same sex marriage on Fourteenth Amendment grounds.  Because the Fourth Circuit also covers North Carolina, that meant that, as Daniel would have understood, the handwriting was on the wall.

On Friday, U.S. District Judge Max Cogburn, who was hearing our case, ruled that Amendment One violated the Fourteenth Amendment and had to be struck down.  This meant that he never had to decide the First Amendment claim.  It also meant that starting Friday in some North Carolina counties, and Monday in others, registrars began to issue licenses for same sex couples to marry, and marriage ceremonies started to take place.  Yesterday, another federal judge in North Carolina came to the same conclusion in another case.  Marriage equality in North Carolina is now a reality.

TomAlpertI used to practice law and serve as the amicus brief coordinator for the CCAR.  This meant that I had the privilege of being involved in our decision to take part in this case.  When I read Judge Cogburn’s ruling, I felt pride that our CCAR leadership and our courageous rabbis helped bring about this change for the better.  The attorneys in this case donated their time, and I felt gratitude for them.  And as I read of couples finally being able to marry, I sensed the rush of righteousness all the way from North Carolina to my home in Massachusetts.  May we continue to be inundated with it as we pray for rain at this season.

Rabbi Thomas Alpert serves Temple Etz Chaim in Franklin, MA. He was ordained from the New York campus of the Hebrew Union College – Jewish Institute of Religion in 2000 after a previous career as a lawyer.

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News Social Justice

The North Carolina Marriage Equality Lawsuit: Moving with Momentum to Affirm a Civil Right

“The arc of the moral universe is long, but it bends toward justice.”  That is what the Rev. Martin Luther King, Jr., memorably wrote.  When it comes to marriage equality, that arc is bending more and more steeply, more and more rapidly, toward its goal.

This spring, I had the honor of assisting the CCAR in its decision to participate as a plaintiff in General Synod of the United Church of Christ v. CooperThis lawsuit challenges two related provisions in North Carolina law.  One prohibits same sex marriage.  The other makes it a crime to officiate at a prohibited marriage ceremony.  We contend that, read together, these two laws have the effect of threatening rabbis who participate in religious only ceremonies of kiddushin for same sex couples.  We also claim that the United States Constitution outlaws the prohibition on same sex marriage in general.

Last week came the news that the Fourth Circuit Court of Appeals had affirmed the decision of the District Court for the Eastern District of Virginia in Bostic v. Rainey.  This case challenged Virginia’s ban on same sex marriage, and first the district court and now the court of appeals have ruled that this ban is unconstitutional.

To explain why this is important in the North Carolina case, I need to say a few words about how the federal court system is organized.  At the bottom are the district courts, which hold trials and make initial decisions.  One step above them are the twelve circuit courts of appeal, which hear appeals from the district courts.  Above the circuit courts of appeal is only the Supreme Court.

North Carolina is in the Fourth Circuit, the same circuit as Virginia.  Any rules of law that come out in the Virginia litigation would also normally apply in cases from North Carolina.  The decision in the Virginia case thus spells very bad news for the ban on same sex marriage in North Carolina.  Indeed, North Carolina Attorney General Roy Cooper, the “Cooper” who is the named defendant in our case, announced yesterday that he no longer believes that he can defend the North Carolina ban in court.

More generally, I am amazed by how quickly and how steadily federal and other courts are dispatching bans on same sex marriage on broad constitutional grounds.  Thirteen short months ago, in United States v. Windsor, the Supreme Court held the federal Defense of Marriage Act to be unconstitutional.  Since that time, federal district courts in sixteen states, two federal circuit courts of appeal, and three state courts have held that bans on same sex marriage are unconstitutional.  Not one case has gone the other way.  I cannot think of another example where the law has moved with this much momentum to affirm a civil right.

The struggle is not over.  Our case in North Carolina remains active, and there will almost certainly be an appeal of the Fourth Circuit decision.  But that arc is bending hard toward justice.  I am proud to be a member of an organization that is helping to bend it there.

Rabbi Thomas Alpert serves Temple Etz Chaim in Franklin, MA. He was ordained from the New York campus of the Hebrew Union College – Jewish Institute of Religion in 2000 after a previous career as a lawyer.